*Staff Attorney, Office of the Solicitor, United States Department of the Interior, Washington, D.C. The views

expressed are solely those of the author and do not reflect those of his department.1

The second amendment's capitalization and punctuation is not uniformly reported; another version has four commas,after "militia," "state," and "arms." Since documents were at that time copied by hand, variations in punctuation and capitalizationare common, and the copy retained by the first Congress, the copies transmitted by it to the state legislatures, and the ratificationsreturned by them show wide variations in such details. Letter from Marlene McGuirl, Chief, British-American Law Division, Libraryof Congress (Oct. 29, 1976).

2See, e.g., Beschle, Reconsidering the Second Amendment: Constitutional Protection For Right of Security, 9 Hamline

L. Rev. 69 (1986); Cress, An Armed Community: The Origins and Meaning of the Right to Bear Arms, 71 J. Am. Hist. 22 (1984);Levin, The Right to Bear Arms: The Development of the American Experience, 48 Chi. Kent L. Rev. 148 (1971); Note, The Rightto Bear Arms, 19 S.C.L. Rev. 402 (1967).

3This approach fell into disfavor in the early twentieth century, but its resurgence in recent years has altered

constitutional interpretation. While advocates of collective rights approaches have for a decade failed to produce much in the wayof original thought or research, the last five years have seen an explosion of original research supporting the individual rightsapproach. See, e.g., Caplan, The Right of the Individual to Bear Arms: A Recent Judicial Trend, 1982 Det. C.L. Rev. 789; Dowlut,The Right to Arms: Does the Constitution or the Predilection of Judges Reign?, 36 Okla. L. Rev. 65 (1983); Dowlut & Knoop, StateConstitutions and the Right to Keep and Bear Arms, 7 Okla. City U.L. Rev. 177 (1982); S. Halbrook, That Every Man Be Armed:The Evolution of a Constitutional Right (1984); Subcomm. on the Constitution of the Sen. Judiciary Comm., The Right to Keep andBear Arms, 97th Con., 2d Sess. (Comm. Print 1982); Halbrook, The Right to Bear Arms in the First State Bills of Rights:Pennsylvania, North Carolina, Vermont, and Massachusetts, 10 Vt. L. Rev. 255 (1985) [hereinafter The Right to Bear Arms];Halbrook, To Keep and Bear Their Private Arms: The Adoption of the Second Amendment 1787-1791, 10 N. Ky. L. Rev. 13 (1982);Hardy, Armed Citizens, Citizen Armies: Toward a Jurisprudence of the Second Amendment, 9 Harv. J.L. & Pub. Pol'y 559 (1986)[hereinafter Armed Citizens]; D. Hardy, Origins and Development of the Second Amendment (1986); Kates, Handgun Prohibitionand the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204 (1983); Malcolm, The Right of the People to Keep andBear Arms: The Common Law Tradition, 10 Hastings Const. L.Q. 285 (1983); Shalhope, The Ideological Origins of the SecondAmendment, 69 J. Am. Hist. 599 (1982). The author is also informed that Joyce Malcolm, a historian specializing in early modernBritish history, is in the final drafting of a treatise on the common law right to arms, which alone is likely to double the availableoriginal research on the history of that right.

[Copyright © 1987 Journal of Law & Politics. Originally published as 4 J. OF L. & POL. 1-62 (1987). Permission for WWW useat this site generously granted by University of Virginia Journal of Law & Politics (http://scs.student.Virginia.EDU/~jalopy/)and the author. For educational use only. The printed edition remains canonical. For citational use please obtain a back issuefrom William S. Hein & Co., 1285 Main Street, Buffalo, New York 14209; 716-882-2600 or 800-828-7571.]

The Second Amendment and the Historiography ofthe Bill of Rights

by David T. Hardy*

The second amendment to the Constitution of the United States recognizes that "[a] wellregulated militia being necessary to the security of a free state, the right of the people to keep andbear arms shall not be infringed."1 That there is controversy surrounding the interpretation of thesecond amendment, or any provision of the Bill of Rights, is hardly surprising. While the disputesrelating to the first, fourth and remaining amendments focus upon their detailed application, theconflict over the second amendment concerns the question of its very subject matter. One school ofthought contends that the second amendment protects a collective right, a narrow guarantee of a stateright to maintain organized reserve military units.2 This interpretation emphasizes the phrase "A wellregulated militia being necessary to a free state," and maintains that the subsequent recognition ofthe people's right to bear arms is a mere restatement of this collective (i.e., state) right. The otherschool of thought contends that the amendment recognizes an individual right to possess and usearms.3 This interpretation emphasizes (pg.2) the phrase "the right of the people to keep and bear arms

4The author has suggested a third school of thought, advocating a "hybrid" right, in which the right is individual but

its source is collective. In this view, individuals are seen as having a right to possess arms suitable for organized military reserve duty.See Hardy, Armed Citizens supra note 3, at 615-622.

5Madison's original proposal took no fewer than 46 words to describe the rights involved: "The right of the people to

keep and bear arms shall not be infringed; a well-armed, and well-regulated militia being the best security of a free country: but noperson religiously scrupulous of bearing arms, shall be compelled to render military service in person." 12 The Papers of JamesMadison 201 (R. Rutland & C. Hobson eds. 1979). The version finally voted out by the Congress uses only 24 words. Madison'soriginal version also illustrates his approach of grouping several rights into a single amendment, since it incorporated not only amilitia and a right to arms component, but would have added a constitutional right to conscientious objection.

shall not be infringed," and maintains that the preceding description of the militia (i.e., all individualscapable of armsbearing) is a mere explanation of one objective of this guarantee.4

The works of neither school entertain the possibility that an "either/or" test may be a grossoversimplification of what are in fact two different sets of constitutional priorities. Yet the fact thatprior to 1788 the Framers who proposed protections for individuals' arms did not propose to protectthe militia, and those desirous of protecting the militia did not propose safeguards of individual arms,suggests the quixotic nature of previous attempts to demonstrate that the Framers, as a whole, hada single intent. Is it reasonable to assume that John Adams, obsessed with the risk of mob rule, andThomas Jefferson, who so lightly praised the virtues of frequent revolutions, were of a single mindwhen it came to popular armaments? When Virginia constitutionalized the principle that awell-regulated militia was necessary to the proper defense of a free state, and Pennsylvania insteadguaranteed that the people had a right to bear arms for defense of themselves and the state, was therein fact (pg.3) an identical understanding which motivated each statement? Both existing formulationsof the second amendment require us to assume precisely that. As a consequence, no existing analysisof that amendment has attempted a critical examination of the proposals for the second amendmentagainst the varied backgrounds and philosophies of their authors, and none has taken account ofrecent research demonstrating that the different state conventions were dominated by radicallydiffering political philosophies.

It is the purpose of this article to suggest that in fact neither the collective nor individualschool of thought is correct insofar as it claims to entirely explain the second amendment, and bothare correct, insofar as they purport to offer partial explanations. The second amendment was notintended to recognize only a single principle; rather, like the first, fourth, fifth, and sixthamendments, it was intended as a composite of constitutional provisions. Its militia component andits right to bear arms recognition have in fact different origins and theoretical underpinnings. Oneis a legacy of the Renaissance, brought to fruition by the "Classical Republicans;" the other is thecreation of seventeenth century English experience, brought to fruition in the Enlightenment. At thetime of the framing of our Constitution, the militia statement found its primary constituency amongthe gentry, particularly that of Virginia. The individual right to bear arms provision was primarilyadvanced by the Radical movement, particularly in Pennsylvania and Massachusetts. Only after theConstitution had received its crucial ninth ratification were the two precepts joined into a singlesentence, thereby creating a constitutional "package" which addressed the demands of both schoolsof thought. Thus neither the militia nor the right to bear arms provision can be taken in isolation asa sufficient explanation of the second amendment, a fact made obvious by the first Congress'retention of both clauses during its extensive paring of Madison's proposals.5 The second amendmenttherefore has historical (pg.4) interest which extends beyond militia and arms issues. It is,metaphorically speaking, a fault line in the bedrock of the Constitution; the one place where a rough

6Shalhope cites, as typical, a 1940 conclusion that "Americans in 1776 had little if any knowledge of past republics

and that consideration of these was clearly irrelevant to the discussion of the origins of republican institutions in America." Shalhope,Toward a Republican Synthesis: The Emergence of an Understanding of Republicanism in American Historiography, 29 Wm. &Mary Q. (3d Ser.) 49, 50 (1972).

7See generally J. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican

Tradition (1970).

joinder of related ideas enables us today to discern a turning point between two entirely differentAmerican approaches to statecraft.

To be sure, militia systems and individual armament have always been related concerns witha practical interaction. An armed citizenry was the basis of the militia the Framers sought, and thefunctioning of such a militia was the most obvious political purpose of citizen armament. Such aninteraction is hardly unique; the first amendment guarantees freedom of expression and the right topetition the legislature. At the same time, neither of the interrelated rights can fully express thepurposes of the Framers. Indeed, the overlap between the militia concept and the right to armsconcept has not prevented a certain rivalry between the two, a rivalry especially pronounced duringthe formative years of our own nation. Supporters of one view may not have disputed the principleof the other, but they certainly disputed whether it deserved high political-constitutional priority.

One group, influenced by the Classical Republicans, saw the establishment of a stablerepublic that could survive in a hostile environment as the highest priority. For this group, toemphasize citizens' rights against such a republic was to place the cart before the horse. The othergroup, influenced by Enlightenment thought, saw the establishment of the rights of man, aroundwhich a free republic or democracy might be construed, as the main priority. A statement, rather thana command, regarding the value of the militia "to a free state" appealed to the first group; acommand that the right "of the people" to bear arms shall not be infringed appealed to the second.

In order to fully understand both purposes of the second amendment it will be necessary toexamine first the origins of the militia concept, second, the origins of an individual right to beararms, and third, the eventual merger of the two concepts which led to the present secondamendment.(pg.5)

I. The Militia as Essential to a Free Republic

A. A Digression: Modern Historiography, the Classical Republicans and theRadicals

Only a few decades ago, the ideology of the American Revolution could have been neatlysummarized as a commentary on John Locke's First Treatise on Civil Government. Whileacknowledging that more state-centered Republicans emerged during the seventeenth century(largely as a result of the English Civil War and the Protectorate of Oliver Cromwell whichfollowed), this view assumes that their ideas had been discredited in the late seventeenth century andwere disregarded in the eighteenth.6 Thus before Locke there was nothing, so far as the theoreticsof the Framers were concerned.

Recent research has forced a reevaluation of this view, suggesting both that Locke's role wasoverstated7 and that eighteenth century American thought was heavily influenced by pre-Lockean

8The works most crucial to this recognition were: Pamphlets of the American Revolution (B. Bailyn ed. 1965); H.

Colbourn, The Lamp of Experience: Whig History and the Intellectual Origins of the American Revolution (1965); C. Robbins, TheEighteenth Century Commonwealthman: Studies in the Transmission, Development and Circumstance of English Liberal Thoughtfrom the Restoration of Charles II until the War with the Thirteen Colonies (1959); and G. Wood, The Creation of the AmericanRepublic 1776-1787 (1969). The best historiographical works include Banning, Republican Ideology and the Triumph of theConstitution, 1789 to 1793, 31 Wm. & Mary Q. (3d Ser.) 167 (1974); Pocock, Machiavelli, Harrington and English PoliticalIdeologies in the Eighteenth Century, 22 Wm. & Mary Q. (3d Ser.) 549 (1965); Shalhope, Republicanism and Early AmericanHistoriography 39 Wm. & Mary Q. (3d Ser.) 334 (1982); and Shalhope, supra note 6.

9See B. Bailyn, The Ideological Origins of the American Revolution 85 (1967); H. Colbourn, supra note 8, at 60, 78,

127.10

Banning, supra note 8, at 178-79.11

Probably the best treatment of American Radical thought is The American Revolution: Explorations in the Historyof American Radicalism (A. Young ed. 1976). See also Shalhope, supra note 8, at 338-39.

republican views.8 These "Classical Republicans" (largely identified with the Whig Party)contributed greatly to late eighteenth century American political thought. Although largely forgottentoday, the names of eminent Republicans such as Sidney, Harrington and Fletcher werecommonplace to the Framers and their contemporaries.9 Indeed, modern students of this movementmaintain that the (pg.6) Framers were immersed in Classical Republican thought:

No man's thought is altogether free. Men are born into an intellectual universe where someideas are native and others are difficult to conceive. Sometimes this intellectual universe isso well structured and has so strong a hold that it can virtually determine not only the waysin which a society will express its hopes and discontents but also the central problems withwhich it will be concerned. In 1789 Americans lived in such a world. The heritage ofclassical republicanism and English opposition thought, shaped and hardened in the furnaceof a great Revolution, left few men free.10

Yet the rediscoverers of Classical Republican thought did not have the last word in the effortto discern the political thought of the Framers. The seventeenth century had its Populists andDemocrats (the Diggers and the Levelers) and one of the effects of the Classical Republicanemphasis has been the study of their counterparts (albeit not direct descendants), the Radical thinkersof revolutionary America.11 However unappealing such radicalism may have been to the gentry, itsvalues and thought explain the stance of Sam Adams, Thomas Paine, and the urban patriots ofBoston and Philadelphia to a far greater degree than the Classical Republicans' emphasis on agrarian,freeholding society. Moreover, since one of the Radical legacies was an emphasis on individualrights, as distinguished from the Classical Republicans' emphasis on a well-ordered society, theirthought is of special relevance to our Bill of Rights, not to mention the Jeffersonian/Jacksoniandemocracy of the early republic.

To be sure, when we speak of Republicans and Democrats, Conservatives and Radicals, wedo so in a quite subjective manner. Few, if any, statesmen of 1787-1791 would have admitted tobeing anything but a "Republican." Indeed, those whom we would view as "Radicals" today wereamong the most ardent supporters of "Republicanism." Few would have cared to be called "Radical."These terms of art thus have little relation to how the labelled individuals described themselves atthe time. Moreover, to categorize so (pg.7) varied a band of thinkers is to understate the diversity oftheir thought and impose upon that group a particular perspective. The views of Jefferson, theagrarian Radical, differed subtly from those of Sam Adams, the urban Radical; neither man wouldhave cared for too close an association with the views of Sam's aristocratic cousin, John Adams.

12A duty of all freeman to serve in the fyrd, or militia, is traceable at least to the seventh century, and may well antedate

even the Saxon invasions. See J. Bagley & P. Rowley, A Documentary History of England 1066-1540, at 152 (1965).13

J. Bagley & P. Rowley, supra note 12, at 154-56.14

Id. at 155-156.15

See generally Hardy, Armed Citizens, supra note 3, at 564-66.16

Many may think these concepts are recent creations. In fact, Sir John Fortescue, who fought in the War of the Roses,distinguished in the 1470s between France's "jus regale" and England's "jus regale et polliticum." "Jus Regale" can be rendered "royallaw" or "law of the king"; "polliticum" can be rendered as "of the State," "national," or even "of the republic" (Latin translation ofPlato's Republic rendered the title as "Politia"). Fortescue argued that the French peasants were starved and impoverished so that theywere "crokyd" and "feble," and unable to defend the realm: "nor thai have wepen, nor money to bie them wepen withall." Thus theFrench king, unable to use his unreliable nobility or his weak and unarmed peasants, was forced to rely on mercenaries: "Lo, thisis the frute of his Jus regale. Yf the reaume of Englonde, wich is an Ile, and therfor mey not lyghtly geyte soucore of other landes,were rulid vnder such a lawe and vnder such a prince, it wolde be a pray to all oper nacions pat wolde conqwer, robbe or deuouirit." Fortunately, Englishmen were healthy, wealthy and armed to the teeth, "wherfore thai ben myghty, and able to resiste theadversaries of this realme, and to beete oper reaumes that do, or woldee do them wronge. Lo, this is the fruty of Jus polliticum etregale, under wich we live." J. Fortescue, The Governance of England, Otherwise Called The Difference Between an Absolute anda Limited Monarchy 114-15 (C. Plummer rev. ed. 1885).

17See generally M. Beloff, The Age of Absolutism 1660-1815 (1962).

18For example, the Holy Roman Emperor banned wheelock firearms throughout the Empire in 1518, while unauthorized

manufacture of firearms or gunpowder in France soon became a capital offense. Blair, Further Notes on the Origin of the Wheelock,in Arms and Armor Annual 29, 35-36 (1973); L. Kennett & A. Anderson, The Gun in America 12, 15 (1975); N. Perrin, Giving Upthe Gun 58 (1975).

19Proclamation Enforcing Peace in Churches and Churchyards (Oct. 30, 1561), 2 Tudor Royal Proclamations 177-78

(P. Hughes & J. Larkin eds. 1969).For avoiding of divers outrageous and unseemly behaviors... and for the better and speedy reducing of the same

Richard Henry Lee and Elbridge Gerry, both ardent Republicans, are to our eyes hardly compatriotsof Carter Braxton, the reluctant revolutionary and Monarchist. Yet all these otherwise disparateindividuals put their names to the Declaration of Independence, and all (whether Monarchist orDemocrat, Conservative or Radical) would have been similarly Radical to a Tory of the time.Recognizing these limitations, it is still plausible to distinguish between "ConservativeRevolutionaries" such as George Mason, and their Radical brethren such as Sam Adams, andbetween those who gave priority to establishing a stable republic and those who gave priority todefining and guaranteeing rights against even such a government.

B. The Free State and a Well Regulated Militia

The existence of an English militia, comprised not of specialized units but of essentially theentire male population, far antedates even the Norman Conquest.12 By 1181, every English freemanwas required annually to prove ownership of arms proportionate to his landholdings.13 In 1253, evenserfs were required to prove annually that they owned a spear and dagger.14 Subsequent enactmentsordered all healthy Englishmen to own longbows, to train their sons in archery from age seven, andto abstain from a variety of outdoor sports that diverted commoners from the archery ranges.15 Bythe fifteenth century, Englishmen already regarded universal armament for national defense as acritical element in their development of "government under law."16 This perception of citizenarmament as (pg.8) a peculiarly English virtue was thereafter reinforced by the rise of royal absolutismon the Continent,17 with consequent limitation on firearm possession in France and the Empire. Longafter her continental counterparts had banned or severely restricted firearms ownership,18 Elizabethstill struggled to stop her subjects from drawing pistols in church, or firing them in the churchyard.19

churches to the godly uses for Thee which the same were builded, ... Her Majesty's pleasure is that if any personshall make any fray or quarrel, or draw, or put out his hand to any weapon for that purpose, or shoot anyhandgun or dag within the cathedral church of St. Paul ... or within any other church or churchyard, [he] ... shallsuffer imprisonment by the space of two months without bail or mainprize....

Id. Henry VIII had briefly experimented with prohibiting firearms shooting by all but the wealthy, but soon abandoned the attemptin the face both of massive noncompliance and of new military needs. See Hardy, Armed Citizens, supra note 3, at 566-69.

20C. Oman, A History of the Art of War in the Sixteenth Century 288 (1937).

21L. Boynton, The Elizabethan Militia 8-9 (1967).

22B. Lyon, A Constitutional and Legal History of Medieval Britain 271-73 (2d ed. 1980). See L. Boynton, supra note

21.23

See L. Boynton, supra note 21.24

See generally Hardy, Armed Citizens, supra note 3, at 572-575.25

N. Machiavelli, The Prince and the Discourses 44 (Mod. Library ed. 1950) (1513).26

See id. at 44-45.

While the results of citizen armament may thus have been annoying to sundry clerics, theydid much to restrain excessive royal power. An English king had to remember that his "'gentlemanpensioners' and his yeoman of the guard were but a handful, and bills or bows were in every farmand cottage."20 Conversely, a popular monarch could count upon a massive reserve army, maintainedat little or no cost to the state: in the 1580s, Elizabeth could maintain (pg.9) 120,000 men on dutythroughout the summer.21 Such a force was almost entirely for defensive use because, since thetwelfth century, English kings had relied upon mercenaries for foreign military service.22

Mercenaries were not tied to a home district; they were better trained and, while on the offensive,could be compensated by plunder. But after the loss of British holdings in France during themid-fifteenth century, England stood mainly on the defensive, and mercenary forces dwindled to ahandful of bodyguards and coastal garrisons.

This decline paralleled an expansion and perfection of the militia system under the lateTudors.23 The system all but collapsed under the reign of the pacifistic James I, who acquiesced inthe repeal of the militia statutes. The civil war which came during the reign of his son, Charles I, sawboth sides dependent upon standing armies (sometimes equipped by disarming local militias). Theend result of the war was a military dictatorship.24 The dictatorship ended in turn with the restorationof Charles II, who restored only a limited royalist militia backed by standing forces. This turmoilpredictably inspired various theoreticians to suggest various ideal political systems. Unlike manythinkers from that period in history, the Classical Republicans, who drew inspiration largely fromthe Greek and Roman republics, left an enduring legacy.

To the early Classical Republicans, the militia concept was more than simple tradition. Thebelief that such a militia was "necessary to a free State" soon became central to their politicalthought. They drew inspiration from Nicolo Machiavelli, who had both explained and attempted toimplement a national militia centuries before. Writing to an Italy which had seen its city-states andtheir mercenary armies crushed in detail by French and Spanish professionals, Machiavelli advocatedan Italian nation, led by a popular prince and based on a national militia. Such a prince, he explained,would found his state upon: "good laws and good arms. And as there can not be good laws wherethere are not good arms, and where there (pg.10) are good arms there must be good laws, I will not nowdiscuss the laws, but will speak of the arms."25 Mercenaries were to be categorically condemned;they were "disunited, ambitious, without discipline, faithless, bold amongst friends, cowardlyamongst enemies, they have no fear of God, and keep no faith with men."26 These faults were

27See id. at 45.

28"Mercenary captains are either very capable men or not; if they are, you cannot rely upon them, for they will always

aspire to their own greatness, either by oppressing you, their master, or by oppressing others against your intentions; but if the captainis not an able man, he will generally ruin you." Id.

29Id. at 46.

30N. Machiavelli, The Art of War 21 (rev. ed. 1965) (1521).

31Id. at 30.

32Id. at xxx.

33See generally F. Rabb, The English Face of Machiavelli 48-51 (1964). Rabb cites, for example, quotations and

paraphrases in English diplomatic dispatches dating from as early as 1537.34

Harrington's major works were Oceana published in 1656 and The Prerogerative of Popular Government publishedin 1658. The best current collection is The Political Works of James Harrington 210, 389 (J.G.A. Pocock ed. 1977). Harrington hasproven to be a bit of a political visionary. He predicted the independence of British and Spanish colonies, the French Revolution,and advocated universal free education, voting by secret ballot, and tax exemptions for dependents. C. Hill, The Century ofRevolution 1603-1714, 310 (1962).

inherent in all mercenaries; their lack of patriotism left no motivation beyond wages, which were notenough to motivate men to die.27 More fundamentally, any mercenary army powerful enough todefend a state must be more than powerful enough to subjugate it.28 According to Machiavelli, onlya nation defended by a militia can escape this dilemma: "Rome and Sparta were for many centurieswell armed and free. The Swiss are well armed and enjoy great freedom."29

The great Florentine expanded these themes in his Art of War. A prince who relies uponmercenaries must either remain embroiled in wars, or risk overthrow when mercenaries becomeunemployed with the advent of peace.

A prince, therefore, who would reign in security, ought to select only such men for hisinfantry as will cheerfully serve him in war when it is necessary, and be as glad to returnhome when it is over. This will always be the case with those who have other occupationsand employments by which to live.30

Such a militia stabilizes the state, whatever its form:

it is certain that no subjects or citizens, when legally armed and kept in due order by theirmasters, ever did the least mischief to any state ... Rome remained free for four hundredyears and Sparta eight hundred, although their citizens were armed all that time; but manyother states that have been disarmed have lost their liberties in less than forty years.31

(pg.11)

Knowledge of Machiavelli's writings spread rapidly. An English translation of his Art of Warwent through no fewer than three printings by 1588,32 yet long before the translations his writingswere common currency among the English statesmen.33 Machiavelli's greatest impact upon Englishthought came, however, through the writings of James Harrington. Harrington applied Machiavelli'srealpolitik to seventeenth century England, substituting a republic of freeholders for rule by apopular prince. The outcome was a stable republic populated, ruled and defended by a militia of itsfreeholders.34 Ownership of land gives independence; unlike a feudal landholder, the modernfreeholder owns in fee simple, is not obliged as a condition of tenure to fight for a superior, and thuscan defend his own rights and interests.

35Pocock, supra note 34 at 553-554.

36Id. at 559.

37Id. at 442-443.

38Neville's great work, Plato Redivus, Or a Dialogue Concerning Government, may be conveniently found in Two

English Republican Tracts (C. Robbins ed. 1969). See generally C. Hill, supra note 34, at 223.39

C. Hill, Some Intellectual Origins of the English Revolution 27 (1980) (citing Neville, supra note 38).

[T]he power whose distributics in society [Harrington] was trying to chart was essentiallythe possession of land that gave a man independence, this independence being in the lastanalysis measured by his ability to bear arms and use them in his own quarrels. Harrington'sdemocracy was a republic of freeholders owning their own lands and weapons....35

Indeed, Harrington's rejection of monarchy is intertwined with his belief that land, political powerand military force must be in the same hands:

Harrington's entire theory of monarchy can be reduced to two propositions: first, that theKing's agents and servants must be supported either upon the land as a feudal aristocracy,or about his person, as praetorians or janissaries; second, that whichever of these methodsis adopted, relations between the military class and the King will be so prone to tensions thatmonarchy can never be a stable form of government.36

(pg.12)

This, Harrington argued, could be contrasted to his stable republic where property, political power,and arms were all in the same hands. Such a republic faced few internal threats, since those witharms also had the greatest economic and political interest in maintaining the state. Nor were externalthreats to be feared:

inasmuch as, the commonwealth being equal, [an invader] must needs to find them united,but in regard that such citizens, being all soldiers or trained up unto their arms, which theyuse not for the defense of slavery but of liberty (a condition not in this world to be bettered),they have more especially upon this occasion the highest soul of courage and (if theirterritory be of any extent) the vastest body of a well disciplined militia that is possible innature. Wherefore an example of such an one overcome by the arms of a monarch, is not tobe found in the world ... [F]or the reasons why a government of citizens ... is the hardest tobe held, there needs no more than that men accustomed unto their arms and their libertieswill never endure the yoke.37

Harrington wrote during the Protectorate, when efforts to maintain a standing army wereindeed destabilizing the nation. After 1660, the army played a different role, that of maintainingroyal power. Harrington's postulate that an army could not be adequately financed and subordinatedwas compromised. Harrington's followers, particularly Henry Neville, modified his critique.Whereas Harrington had assumed a standing army could not stabilize a government, good or bad,Neville and other post-1675 Harringtonians saw it as all too capable of stabilizing an autocraticone.38 Conversely, by arming the people at large democracies could obtain an incomparableadvantage: "democracy is much more powerful than aristocracy, because the latter cannot arm thepeople for fear they could seize upon the government."39 Harrington's followers also recast his utopiain a conservative light, by arguing that traditional English practices had in fact been republican. "Thearming and training of all the freeholders of England, as it is our undoubted (pg.13) ancient

40Molesworth, Forward to F. Hotman, Franco Gallia at xxvi (R. Molesworth trans., London 1711).

41See generally G. Trevelyan, The English Revolution 1688-1689, at 63 (1939). Crucial to the army's failure was an

officers' conspiracy led by none other than John Churchill, James' commander-in-chief, who defected to William during theconfrontation.

42M. Roberts, The Military Revolution 1560-1660, Inaugural Lecture delivered before the Queen's University of Belfast

9-11 (copy in possession of author). The earlier use of the pike had led to no improvements in organization. Fifteenth centurypikemen were generally launched en masse at the enemy.

43See generally Pocock, supra note 7, at 64-65.

44The Mutiny Acts authorized the imposition of martial law on persons enlisted in the military. Absent their sanctions,

a deserting soldier could be punished by a civil suit for breach of contract, or at most, prosecution as a runaway apprentice; one whostruck an officer might face misdemeanor assault charges in the civilian courts. C. Barnett, Britain's Army 1503-1970, at 124 (1970).

Constitution, and consequently our Right," argued Robert Molesworth, "so it is the Opinion of mostWhigs, that it ought to be out in Practice."40 Thus the Classical Republicans ultimately cast themilitia not only as part of the republican utopia but also an underpinning of the existing Englishconstitution.

C. The Standing Army Controversy

Yet as Harrington's successors refined the argument for the militia vis-a-vis the standingarmy, they were being overtaken by events. In 1688 James II relied upon his army, which wasfinanced out of his own personal funds rather than Parliamentary appropriations, and staffed byhandpicked officers. Too late, James discovered his mistake. England was "invaded" by William ofOrange, supported by some 12,000 troops. Although James mustered more than twice that number,dissension (particularly among the officers) prevented James from offering battle, and he fled intoexile.41

This "Glorious Revolution" and William and Mary's acceptance of the throne offered byParliament did nothing to reduce the support for the standing army. For England to accept Williamalso meant being drawn into the ongoing struggle between Holland and France and facing the riskof James' return with a French army. The need for the projection of force on the continent hadreturned and, as always, the militia was totally unsuited to this task.

English policy makers had to face several other realities, none of which favored reliance onthe militia. An invasion, if it came, would be spearheaded by well-trained French troops, at a timewhen such training was of increasing importance. Technical improvements over the course of theseventeenth century had immensely complicated the role of the average infantryman. At thebeginning of the century, the customary infantry weapons of musket or pike (an eighteen-foot spearheld by men formed in a dense mass) had required a moderate amount of training; an army of thattime (pg.14) maneuvered slowly in "tercios" or "battles" of about 3,000 men. During the first third ofthe seventeenth century, armies were constructed around a "battalion" of about 500 men trained toexecute a multitude of orders: "officers became not merely leaders, but trainers of men; diligentpractice in peace-time, and in winter, became essential; and drill, for the first time in modern historybecame the precondition for the military success...."42 Conversely, the financial revolution of the1690's, which saw the creation of a national bank and acceptance of a national debt, made it possibleto fund a large enough standing force.43 Increasing tactical and economic sophistication wereparalleled by the realization of political means to guarantee legislative control of the army.Parliament could keep a tight rein on the standing army by limiting appropriations and enacting"Mutiny Acts" of intentionally short duration.44

The post-1688 Mutiny Acts were generally of one year's duration, ensuring that without annual parliamentary reauthorization armydiscipline would be almost unattainable.

45To be sure, the events of 1688 cannot be represented as an unqualified Whig victory. William's policies favored neither

party, and those of his successor Ann strongly favored Tories. Only with the accession of George I in 1714 did the Whigs attain adominant hand. See generally B. Williams, The Whig Supremacy 1714-1760 (2nd ed. 1962). At the same time, for Whigs after 1688the destruction of the government would likely mean replacement of a generally unsympathetic Tory establishment with anoppressive and vengeful Jacobite one, and the loss of their gains made during the Glorious Revolution.

46Molesworth, supra note 40, at xxv.

47Even under William, who relied heavily upon Whig ministers, "[t]he honeymoon did not last.... [A] flood of

publications reminded Englishmen of the ancient system they were supposedly reviving, including a Saxon-style militia. Yet Williambelieved that military common sense dictated a standing army." H. Colbourn, supra note 8, at 48. Under the Tory administrationswhich followed, these views became truly the "opposition theory [which] provided a model for an American version." Banning, supranote 8 at 183.

483 T. Macaulay, The History of England from the Accession of James the Second 47 (1856).

49T. Hayter, The Army and the Crowd in Mid-Georgian England 117 (1978).

The increased viability of a true standing army suddenly forced the post-1688 Whigs to facethe prospect of becoming members of the establishment they had formerly opposed.45 Some, likeMolesworth, hedged:

A Whig is against the raising or keeping up a Standing Army in Time of Peace; but with thisDistinction, that if at any time an Army (tho even in Time of Peace) should be necessary tothe Support of the very Maxim, a Whig is not for being too hasty to destroy that which isto be the Defender of his Liberty.46

(pg.15)

Others continued to defend the renaissance ideal of the citizen-free holder-soldier, and argued thattreating military skills as a specialization would lead inevitably to tyranny and corruption. Whiletheir views, as will be shown, gained great currency in America, in England they became simply the"Opposition."47

In the years after 1688, a standing army thus became more acceptable to Englishmen, if notto their American counterparts. Macaulay sums up the experience:

What had been at first tolerated as an exception began to be considered as the rule. Not asession passed without a mutiny bill, regarded merely as an occasion on which hopefulyoung orators fresh from Christchurch were to deliver maiden speeches, setting forth howthe guards of Pisistratus seized the citadel of Athens, and how the Praetorian cohorts soldthe Roman empire to Didius. At length these declamations became too ridiculous to berepeated. The most old fashioned, the most eccentric, politician could hardly, in the reignof George the Third, contend that there ought to be no regular soldiers....48

The acceptance of a standing army was paralleled by the atrophy of the militia system inEngland. Indeed, the rural disorders of the 1760s inspired fear in the gentry of the militia-trainedportion of the populace. Lord Barrington, for instance, feared that "a few soldiers, commanded bya weak, ignorant subaltern, might be defeated by a very large mob, full of men lately used to armsin the army and militia."49 The general militia in England was steadily supplanted by a select militiawhich achieved efficiency by a sacrifice of almost every traditional attribute. The 1761 Militia Act,for instance, authorized mustering of only a few hundred men from each county. Those chosen were,if wealthy, able to hire another to serve as a substitute; those actually serving were issued

50"An Act to explain, amend, and reduce into one act of Parliament the Several Laws, now in being, Relating to the

Raising and Training the Militia Within that part of Great Britain called England," 20 Geo. 3, ch. 20, § 105 (1761).51

The North British Intelligencer 20 (Edinburgh 1776) (reporting speech by Lord Mayor of London, attacking theScottish Militia Bill) (Lib. of Congress Rare Books Collection).

52Appleby, Republicanism in Old and New Contexts, 43 Wm. & Mary Q. (3d Ser.) 20, 31-32 (1986).

53See generally A. Macfarlane, The Origins of English Individualism (1978); C. Morris, The Discovery of the Individual

1050-1200 (1972).54

C. Hill, supra note 34, at 248-49. When the Licensing Act briefly lapsed in 1679, the royal courts asserted a commonlaw basis for the prohibition against most political publications, the Chief Justice stating that it extended to "all Persons that do Writeor Print or Sell any Pamphlet that is either Scandalous to Public or Private Persons." G. Sensenbaugh, That Grand Whig Milton 56(1952). Judge Allybone's jury instructions in the Seven Bishop's Case are instructive. "In the first place, ... no man can take uponhim to write against the actual exercise of the government, unless he have leave from the government. If he does, he makes a libel,be what he says true or false; if we once come to impeach the Government by way of argument, it is argument that makes governmentor no government.... My next position is, that no private man can take upon him to write concerning the government at all, for whathas any private man to do with the government. It is the business of the Government to manage matters relating to the government;it is the business of subjects to manage only their private affairs.... when I intrude myself into matters which do not concern my

government arms, stored by the officers under lock and key. The Lieutenant of the county (or hisdeputies) was authorized "to employ such Person (pg.16) or Persons as he or they shall think fit, toseize and remove the arms, clothes and accoutrements belonging to the militia, whenever [they] shalladjudge it necessary to the peace of the kingdom...."50 It thus is no surprise that a few years later theWhig mayor of London would inform Parliament that the militia "could no longer be deemed aconstitutional defence, under the immediate controul and direction of the people; for by that bill theywere rendered a standing army to all intents and purposes whatever...."51

II. The People's Right to Keep and Bear Arms

As noted above, Classical Republicanism strongly influenced American revolutionaryideology. Nevertheless, while the views of Harrington and Neville may go far toward explaining theoutlook of John Adams and George Mason, but they are less illuminating in explaining the viewsof Sam Adams, Thomas Paine, Thomas Jefferson, and their fellows.

Alongside the Machievellian conception of citizenship, order and liberty, there grewup another paradigm .... Classical theory asserted the predominance of politics over all otheraspects of social life. In exactly the way Pocock has described the creation of all matricesof language, [eighteenth century] writers decomposed old meanings about civil order andrecomposed the elements of time, citizenship, and the distribution of authority. Outside the[classical] polity, they constructed a model of economic life that borrowed its order fromnature—the newly conceptualized nature of predictable regularity. As the economyabsorbed more and more of the attention of men and women it supplied a new identity forthem. By the end of the eighteenth century the individual with wide-ranging needs andabstract rights appeared to challenge the citizen with concrete obligations and prescribedprivileges.

In the 1790's, when the Jeffersonian Republicans and Federalists confronted eachother, the battle lines had been drawn around opposing conceptions of civil society.52

(pg.17)

Although Anglo-Saxon society had long placed particular emphasis on the individual,especially toward property,53 the concept of individual political rights was of relatively late birth. Toprint a work on politics or religion required a royal permit as late as 1695.54 Most colonies retained

particular interest, I am a libeller." 2 Lord Campbell, Lives of the Lord Chief Justices 362 (7th ed. 1878).55

From 1686 to 1732, the standard royal command authorizing colonial governors to assume their post ordered themto ban not only printing, but also possession of a printing press, without a license. "You are to provide by all necessary orders thatno person keep any press for printing, nor that any book, pamphlet or other matters whatsoever be printed without your especial leaveand license first obtained." C. Rossiter, Seedtime of the Republic 29 (1953).

56In 1762, the author of a legal treatise was threatened with prosecution for including in his work passages criticizing

rulings of the House of Lords, without having obtained the Lords' consent; a century later, a biographer obtained statutoryauthorization to publish a history of judges, some of whom had sat in Parliament. 5 Lord Campbell, Lives of the Lord Chancellorsand Keepers of the Great Seal of England 26 (7th ed. 1878).

57J.R. Jones, Country and Court 143 (1978). Even authorized petitioners ran a risk; the "Seven Bishops" were prosecuted

for seditious libel based upon a petition handed directly to the king. In 1701, the "Kentish Petitioners," who presented a mild petitionrequesting passage of a spending bill, were imprisoned on the spot for contempt of Parliament. E.N. Williams, The EighteenthCentury Constitution 410-11 (1960).

58G. Trevelyan, The English Revolution 1688-1689, at 27-28 (1939). While the Toleration Acts relieved certain

non-Anglican protestant religions from the risk of criminal prosecution for non-adherence, those acts did not permit theircommunicants to hold office.

596 Lord Campbell, Lives of the Lords Chancellor and Keepers of the Great Seal of England 305-09 (7th ed. 1878).

60Malcolm, supra note 3. Dr. Malcolm's work has also appeared in a paper, J. Malcolm, "Disarmed: The Loss of the

Right to Bear Arms in Restoration England" (Mary Ingraham Bunting Institute of Radcliffe College 1980), and is now being preparedin treatise form.

61J. Malcolm, supra note 3, at 294-96. See also Hardy, Armed Citizens, supra note 3, at 572.

62Ordinances and Acts of the Commonwealth and Protectorate 1317-1319 (London 1911).

the permit requirement into the 1730's;55 even after these measures lapsed, it was illegal to print awork reflecting on an action of Parliament or the person of a member without prior authorization.56

The 1661 Act Against Tumultuous Petitioning prohibited petitioning the King or Parliament forchanges in the established law, absent a permit from a justice of the peace.57 The 1673 Test Act,which generally barred non-Anglicans from civil or military office, remained on the books until1829;58 searches based on general warrants, issued by the executive, were (pg.18) universally accepteduntil the 1760s.59 Most of our Bill of Rights are, in short, of quite recent vintage. It should thereforecome as no surprise that the concept of a right to keep and bear arms has a later point of origin thanthat of the militia. Conversely, a specifically individual right to arms, separate and apart from themilitia system, was one of the earliest of the individual civil rights to gain acceptance.

In fact, the origins of the concept of an individual right to arms lies not in the eighteenthcentury Enlightenment, but in the turmoil of the seventeenth century. As Joyce Malcolm hasdemonstrated,60 Englishmen of all classes and loyalties were shocked when, hard pressed for armsat the outset of the English Civil War, both Royal and Parliamentary forces disarmed suspectedopponents and even supporters.61 The end of the fighting brought no end to the risk. In 1659, theProtectorate for the first time gave formal statutory authorization to disarm Englishmen en masse:officials were authorized to search for and seize all arms possessed by veterans of the Royal armiesor by "any other person whom the Commissioners shall judge dangerous to the peace of theCommonwealth."62 Nor were supporters of the Commonwealth safe for long. The following year,the Commonwealth fell and Charles II was restored to the throne. One of his first acts was to orderthe Lords Lieutenant of the militia to disarm all likely opponents. The Calendar of State Papers

638 Calendar of State Papers (Domestic) 150, Charles II, No. 188 (July 1660). Using the militia for such tasks was not

unusual; in addition to being a military force, it was used for domestic law enforcement. However, the same order makes it clear thatthe Lords Lieutenants were to "stack" the militia, relying not upon a general muster of the populace but upon volunteers "who offerassistance," who were to be "formed in troops apart and trained."

64J.R. Western, The English Militia in the Eighteenth Century 12-14 (1965).

65Statutes at Large, 14 Car. 2, ch. 3, § 2 (1662). Apart from numerical limitations, members were required to swear that

"it is not lawful upon any pretence whatsoever to take arms against the King." Id. at § 19.66

Id. at § 14. The search was to be between dawn and sunset, unless the warrant issued by the Lieutenant or his deputiesindicated otherwise. Force could be used in the event of resistance.

67Malcolm, supra note 3, at 285, 299-300.

68Statutes at Large, 22 & 23 Car.2, ch. 25, §§ 2-3 (1670). This was fifty times the property requirement for voting, and

marked a 250% increase over the previous hunting requirement. Hardy, Armed Citizens, supra note 3, at 576. Well into the nextcentury, barely 3% of Englishmen could boast lands of this value. C. Hill, Some Intellectual Consequences of the English Revolution9 (1980).

69The 1671 Acts in fact marked a major act of self-assertion by the gentry. Not only the poor were disarmed, but the

wealthy tradesmen and others who failed to invest in land. The gentry, not the King, now controlled game and hunting and enforcedthe law. See P. B. Munsche, Gentlemen and Poachers: The English Game Laws 1671-1831, at 12-18 (1981).

70See generally Hardy, Armed Citizens, supra note 3, at 578-79.

712 Calendar of State Papers (Domestic) 314, James II, No. 1212 (Dec. 6, 1686).

72See J.R. Western, supra note 64 at 31.

summary of his order ends: "officers to be numerous, disaffected persons watched and not allowedto assemble, and their arms seized."63

The order was executed so zealously as to antagonize even Charles' supporters. The failureof his attempts to secure a comprehensive (pg.19) militia bill in 1661 is primarily attributable toresentments aroused among members of the royalist Restoration Parliament.64 Only after strenuouseffort was Charles able in 1662 to secure passage of a suitable Militia Act. The 1662 Act broadlyauthorized actions which Charles had previously undertaken by prerogative. Rather than draw itsmembership from the entire body of the people, the militia was to be a limited, organized group ofRoyalists;65 most critically for the purposes of this article, the Lieutenants and their deputies wereto "search for And seize all Arms in the custody or possession of any person or persons whom thesaid Lieutenants or any two or more of their deputies shall judge dangerous to the peace of theKingdom...."66 In support of these provisions, gunsmiths and carriers were ordered by proclamationto file weekly reports on firearms sold and transported.67 Furthermore, in 1671, the Hunting Act wasamended to restrict arms possession by all but the landed gentry. The Hunting Acts had long barredall but the relatively wealthy from ownership of hunting implements, such as traps, nets and huntingdogs. The 1671 Act added all firearms to the list of contraband, and extended the ban to all personsnot owning lands with an annual rental value exceeding 100 pounds sterling.68 Anyone possessingproperty with greater value was authorized to search residences for weapons on his own initiative.69

Both Charles and his successor, James II, vigorously implemented these firearms proscriptions.70 InDecember 1686, James issued duplicate orders to six Lords Lieutenant of the militia, stating that hewas (pg.20) informed "that a great many persons not qualified by law under pretense of shootingmatches keep muskets or other guns in their houses" and that they should instruct their deputies "tocause strict search to be made for such muskets or guns and to seize and safely keep them till furtherorder."71 The searches were intended to keep the Anti-Royalists under control and on the defensive.72

73One contemporary Londoner reports, "The militia for the citty [sic] of London went from house to house to search

for arms, and 'tis said at some places quantities were seized." 1 N. Lutterell, A Brief Historical Relation of State Affairs fromSeptember 1678 to April 1714, at 263 (Oxford 1857).

74If "revolution" seems a strange term to apply to the actions of a predominantly conservative, thoroughly

"establishment" Englishman, it must be remembered that the term was invented to describe this particular event and (being taken fromthe mechanical arts) was meant to describe a return to the constitutional point of origin. James, the term implied, had reversedconstitutional norms: the "revolutionaries" sought to restore them through further action. See J.R. Western, supra note 64, at 1.

75Following their acceptance, they summoned a proper Parliament which, being thus empowered to enact legislation,

enacted the Declaration of Rights as a bill of rights. 1 W.& M., ch. 1, § 2 (1688). See generally G. Trevelyan, supra note 58, at149-151.

76The concentration upon fundamentals, and matters of consensus, had a practical basis. Until the Declaration could

be drafted, the throne could not be offered to William and Mary. James might at any point return, either through negotiation orthrough invasion. William began to hint that, absent a prompt offer, he was prepared to return to the Continent. Accordingly, astatement of the most vital rights had to be quickly prepared and had to be limited to such as all factions would agree upon. G.Trevelyan, supra note 58, at 149-151.

77Guarantees of rights to petition, prohibitions on excessive bail or fines and protections against cruel and unusual

punishments are obvious examples of safeguards embodied in the Bill of Rights. Other guarantees of the Declaration were writteninto our Constitution itself. Bans on levying of taxes without legislative consent, guarantees that "parliaments ought to be heldfrequently," and that freedom of debate in Parliament "ought not to be impeached or questioned in any court or place out ofparliament" all reflect concepts written into our 1787 Constitution.

78These debates were fortuitously preserved in a pencilled outline of speeches. See 2 P. Yorke, Lord of Hardwicke,

Miscellaneous State Papers from 1501 to 1726, at 399 (London 1778). The notes were made by Lord Somers, who headed thecommittee charged with drafting the Lords' version of the Declaration. They survived a 1752 fire at Lincoln Inn which destroyedmost of the remainder of Somers' papers.

79Id. at 416.

80Boscawen also added a personal element to Temple's complaints of disarmament: "Acts of the Long

Parliament—Corporation Act—That the same with the resolution—The most loyal or deserving, turned out.—Militia—Imprisoningwithout reason; disarming—Himself disarmed." Id. The reference to the Long Parliament is ambiguous; that would normally identifythe Parliament which sat from 1640-1649, during the Civil War, and was dissolved by Cromwell. By adding in the various "rump"Parliaments under the Protectorate, it can be extended to 1660. Might Boscawen have been referring to Charles II's first Parliament,the "Cavalier" or "Pensioner" Parliament? Since it met intermittently from 1661 to 1679, it certainly was a long Parliament, if notthe "Long Parliament," and it enacted the Corporation Act (which turned non-royalists out of all city governments) as well as theMilitia Act, both of which Boscawen names as grievances.

The reconstituted Royalist militia was used for enforcement, and sometimes engaged in masssearches.73

As noted above, neither such disarmaments nor James' personally-financed standing armywere sufficient to sustain him in power. James lost his throne but retained his head, for the 1688Glorious Revolution74 was accomplished without a single fatality. Parliament, meeting on its owninitiative as a "convention," formulated a "Declaration of Rights" which William and Mary, itsnominees, were required to accept prior to taking the throne.75 The Declaration was intended toreflect the very core of traditional English rights which must be observed in the future; it embodiedonly the most indisputable and critical rights.76 A century later, an American Congress would usemuch of the Declaration as a basis for an American bill of rights.77

(pg.21) The Parliamentary debates over the Declaration mark the first acceptance of an indisputably

individual right to keep and bear arms. The debates in the House of Commons78 show that armsconfiscations under the Militia Act were a widespread grievance. Sir Richard Temple, for example,criticized the militia bill as containing the power to disarm all England.79 Mr. Boscawen's crucialspeech focused upon the oppressive acts of Parliament as well as those of the King.80 Sergeant

81Maynard would later successfully argue that Parliament ought to proceed both to fill the throne and secure their rights.

Id. at 417. Sergeant was then, incidentally, a very high legal rank; in court, a Sergeant-at-law was entitled to speak first, before eventhe Attorney or Solicitor General, and was entitled to be addressed as "brother" by the bench; while all others uncovered their headsin the Royal presence, the Sergeant retained his coif, lest it be thought that the law must humble itself before a monarch. C. Bowen,The Lion and the Throne 278 (1957).

82P. Yorke, supra note 78, at 407.

83Id. at 414, 415, 417. Some of the listed complaints were, "fundamentals too may be destroyed, by corrupting

Parliaments;" "In the year 1660, there were many hard laws made, grievous to the people ... Militia Act ... Corporation Act wasarbitrary." Id.

84Journal of the House of Commons from December 26, 1688 to October 26, 1693, at 21-22 (London 1742) (Lib. of

Congress Rare Books Collection).85

The proviso regarding armament of Catholics was inserted, the Lords explained in conference, because "[t]his is afurther aggravation fit to be added to the clause." Id. at 25.

861 W. & M., ch. 2 (1689).

874 W. & M., ch. 2 (1692). See generally Hardy, Armed Citizens, supra note 3 at 581. As Dr. Malcolm notes, "The

provision in the Declaration of Rights that Protestant subjects had a right to have arms suitable to their conditions and as allowedby law was interpreted to mean that all Protestants, whatever their condition, were permitted to have arms." Malcolm, supra note 3at 16. The extension of rights such as these to all Protestants was a legacy of the Protestant dissenters' contribution to the GloriousRevolution. Previously, non-Anglican Protestants had been viewed as a public danger; the Presbyterians and Independents had, afterall, been the mainstay of Cromwell's Protectorate and were often lumped in with Catholics as persons who believed monarchs mightbe overthrown for religious reasons. One seventeenth century sermon indeed charged that Jesuits and Calvinists were "sworn brothersin iniquity, to plot and conspire the death and ruine of Princes." G. Sensenbaugh, supra note 54, at 75. It would be interesting to havethe reactions of Jean Calvin and Ignatius Loyola to that accusation.

Maynard81 complained that "an Act of Parliament was made to disarm all Englishmen, whom thelieutenant should suspect, by day or by night, by force or otherwise."82 Others seconded hiscomplaints of oppressive enactments before Maynard returned to the floor:

Some particulars well propounded—Some gross grievances for which we are beholden toa Parliament, who care not what was done, so their pensions were paid.—Militia Act—anabominable thing to disarm the nation, to set up a standing army—Corporation Act carriedinto execution with a high hand.83

(pg.22)

The House of Commons voted out a Declaration, in the form of a list of grievances and parallelrights. The list of grievances included a statement that "The Acts concerning the militia are grievousto the subjects." Although this would clearly focus upon the rights of the individual, or "subject,"Commons clouded the issue in the rights recognitions of its draft: "[T]he Subjects which areProtestants, should provide and keep arms for the common defense; and that the arms which havebeen seized and taken from them be restored."84 The House of Lords found this combination ofindividual right and remedy with a collective purpose unacceptable. The grievance section ofCommons' draft was altered into a general indictment of James' policies. He had endeavored "tosubvert and extirpate" the "laws and liberties of this kingdom" by, inter alia, "causing several goodsubjects, being protestants, to be disarmed, at the same time when papists were both armed andemployed contrary to law."85 The second passage was even more profoundly altered. The "commondefense" proviso was replaced with a recognition that individuals might possess arms "for theirdefense." The Lords declared: "For the vindicating and asserting their ancient rights and liberties....[t]hat the subjects, which are protestants, may have arms for their defense suitable to their conditionsand as allowed by law."86 Lest there be confusion over the "as allowed by law" proviso, Parliamentpromptly amended the Hunting Acts to delete firearms from the list of contraband.87 The House of

88Malcolm, supra note 3, at 309 & n.139.

89Maryland's colonial militia code of 1692 paralleled the 1662 Militia Act, but added a proviso that "no pressmaster

or any persons whatsoever shall presume at any time to seize, press or carry away from the inhabitant resident in this province anyarms or ammunition of any kind whatsoever...any law, statute or usage to the contrary notwithstanding." 13 Archives of Maryland:Proceedings and Acts of the General Assembly of Maryland, April 1684 - June 1692, at 557 (W. Browne ed. 1894).

901 W. Blackstone, Commentaries *144.

91W. Blizard, Desultory Reflections on Police 59-60 (London 1785) (copy in possession of author). See also Malcolm,

supra note 3, at 313; Hardy, Armed Citizens, supra note 3, at 587.

Commons paralleled this with an amendment to the Militia Act which (pg.23) repealed all power toseize firearms; unfortunately, the bill was lost in the House of Lords when William dissolvedParliament.88 Nevertheless, its provisions were soon incorporated into colonial militia statutes.89

The Lords' changes, which prevailed in conference, thus emphasized the individual characterof the right to arms. The final form of the Declaration does not so much as mention the militia.Standing armies are mentioned, but the objection is only that they were maintained "without consentof Parliment;" a purely royal army is contrary to law, one created by Parliment is quite consistentwith the Constitution.

The Declaration in turn formed the core of the following century's conception of individualrights. In his famed Commentaries, Blackstone discussed the absolute rights of life, liberty andproperty, and the auxiliary rights which protect them. After discussing such auxiliary rights as thoseto petition and to legal process he concluded, in words which would have been read and re-read byJefferson, Madison and almost any colonist with a claim to constitutional insight:

The fifth and last auxiliary right of the subject, that I shall at present mention, is that ofhaving arms for their defense, suitable to their condition and degree and as allowed by law.Which is also declared by the same Statute 1 W&M s. 2 c.2 and is indeed a public allowanceunder due restrictions, of the natural right of resistance and self preservation, when thesanctions of society and the laws are found insufficient to restrain the violence ofoppression.90

In brief, it is apparent that the common law recognized an individual right to keep and beararms, and that this was separate and apart from the related concept (whether or not it be considereda "collective" or an "individual right") that a militia was an especially appropriate way of defendinga free republic. The "collective/individual" (pg.24) distinction was not unknown at this point, butEnglishmen approached it by stressing that their system endorsed both concepts. As the Recorderof London noted, when called upon to determine the legality of privately-established military reserveunits:

The right of his majesty's Protestant subjects, to have arms for their own defense, and to usethem for lawful purposes, is most clear and undeniable. It seems, indeed, to be considered,by the ancient laws of this kingdom, not only as a right, but as a duty ... And that this right,which every Protestant most unquestionably possesses individually, may, and in many casesmust, be exercised collectively, is likewise a point which I conceive to be most clearlyestablished by the authority of judicial decisions and ancient acts of Parliment, as well asby reason and common sense.91

92See generally supra notes 41-48 and accompanying text.

93See generally J. Gavin, The Minute Men 1-46 (1967).

94See C. Rossiter, The Political Thought of the American Revolution 55 (1963). See generally B. Bailyn, supra note

9; H. Colbourn, supra note 8.95

See generally supra notes 36-39 and accompanying text.96

Burgh's most popular work, Political-Disquisitions, infra note 97, was quickly reprinted in the colonies by BenjaminFranklin. Major printed works at that time were sold by pre-publication subscription; the signatories to Burgh's subscription list readlike those to the Declaration of Independence: George Washington, Thomas Jefferson, John Adams, John Hancock and JohnDickinson. L. Cress, Citizens in Arms: The Army and the Militia in American Society to the War of 1812, at 35 (1982).

97"Had we at this time no standing army, we should not think of forcing money out of the pockets of three millions of

our subjects. We should not think of punishing with military execution, unconvicted and un-heard, our brave American children,our surest friends and best customers.... We should not—but there is no end to observations on the difference between the measureslikely to be pursued by a minister backed by a standing army, and those of a Court awed by the fear of an armed people." 2 J. Burgh,Political-Disquisitions: An Enquiry into Public Errors, Defects and Abuses 475-476 (reprint 1971) (London 1774).

98In 1774, the British government banned export of arms and ammunition to the colonies, and instructed General Gage

to disarm rebellious areas. After several attempts to raid militia arsenals in the Boston area, some successful and some unsuccessful,an intended raid on the Concord arsenal brought about the outbreak of war at Lexington and Concord. At almost the same time,British authorities in Virginia secretly emptied the powder magazine at Williamsburg, but were discovered as they made off. TheVirginians responded by mustering militia units, confronting British officials, and seizing 200 muskets from the governor's mansion.The unusually bad timing of the two raids thus brought Massachusetts and Virginia (which otherwise had little in common) into analliance in revolution, thus uniting the leadership of New England and the South. See generally Hardy, Armed Citizens, supra note3, at 591-593.

99The Federalist No. 25, at 166 (A. Hamilton) (C. Rossiter ed. 1961).

III. The Militia and the Rights to Arms in Pre-Revolutionary America

A. Decline of the Militia System

While the militia as an institution declined in Britain during the eighteenth century,92 itretained vitality in the colonies. Unlike the mother country, the colonies lacked both the need toproject military force beyond their borders, and an economy which could support a significantstanding force. The colonists quickly adapted the militia system to Indian conflicts, instituting rapidresponse units and long-range patrols.93 They also assimilated the views of the English Whigs andClassical Republicans,94 with their stress upon the militia's role in a free republic.95 To Harrington,an army was too unstable to support any government; to Neville, it was so stable as to support atyrannical one; to many colonists, it was capable of corrupting a republican government into atyranny. Had not James Burgh, their favorite Whig,96 laid their troubles with the mother (pg.25) countryat the feet of the English standing army?97 The Revolution's origins reinforced these views. The mostcritical preparation for the conflict came in 1774, when revolutionaries took over virtually everycolony's militia organization. The British attempts to raid militia arsenals at Concord andWilliamsburg ensured the alliance of Massachusetts and Virginia and converted local grievances intoa continental war.98

The conclusion of the American Revolution left Americans in a position similar to that ofpost-1689 English Whigs: the former opponents were now in control. Many now found a limitedstanding army acceptable. Hamilton later observed that exclusive dependence on the militia: "hadlike to have cost us our independence.... The steady operations of war against a regular anddisciplined army can only be successfully conducted by a force of the same kind."99 These viewsprevailed in the early republic: a small professional army was kept afoot, and it was expanded as

100Initially, one regiment was maintained; a second was added in 1791. During the 1798 quasi-war with France, this was

expanded to four regiments. W. Millis, Arms and Men 46, 50-53 (1956). A decade later, Jefferson's administration began with4,000-5,000 men on duty and eventually doubled this authorized strength. R. Weigley, Towards an American Army: MilitaryThought from Washington to Marshall 27-28 (1962). The 1820 report by Secretary of War Calhoun, a dedicated Jeffersonian, calledfor reducing the importance of the militia, which were incapable "of meeting in the open field the regular troops of Europe" andinstead creating an expansible army. Id. at 31-33.

101A few examples: Richard Henry Lee charged that a select militia would "answer all the purposes of an army" and that

therefore the "Constitution ought to secure a genuine and guard against a select militia." Letters from the Federal Farmer to theRepublican 21-22, 124 (W. Bennet ed. 1978). In the Pennsylvania federal ratifying convention, John Smilie expressed concern that"Congress may give us a select militia which will in fact, be a standing army." 2 The Documentary History of the Ratification of theConstitution 509 (M. Jensen ed. 1976). When Baron von Steuben, the Prussian expatriate who became Washington's InspectorGeneral, proposed a select militia, one Connecticut newspaper was able to complain that the congressional power over the militia"looks too much like Baron Steuben's militia, by which a standing army was meant and intended," 3 Id. at 378. A Pennsylvanianewspaper complained that the Federalists sought: "1. The liberty of the press abolished. 2. A standing army. 3. A Prussian militia."J. McMaster & F. Stone, Pennsylvania and the Federal Constitution 1787-1788, at 141 (1888).

102At the Constitutional Convention, a delegate explained that "by organizing, the Committee meant proportioning the

officers and men—by arming, specifying the kind, size, and calibre of arms—and by disciplining, prescribing the manual exercise,evolutions, ...." 5 J. Elliot, Debates in the Several State Conventions on the Adoption of the Federal Constitution 344 (1966) (2d ed.1836). In the Pennsylvania convention, James Wilson explained: "If a soldier drops his musket, and his companion, unfurnished withone, takes it up, it is of no service, because his cartridges do not fit it. By means of this system, a uniformity of arms and disciplinewill prevail throughout the United States." 2 id. at 521.

103Major plans included Steuben's of 1784; Knox's of 1786; and Washington's of 1790. The last, submitted to Congress

in January 1790, was drafted, redrafted, debated and, after a year and a half of work, enacted in emasculated form as the Militia Actof 1792. J. Palmer, Washington, Lincoln, Wilson: Three War Statesmen 87-89, 104-05, 107-123 (1930). See also L. Cress, supranote 96, at 78-93, 116-129.

1041 Messages and Papers of the Presidents 57 (1897) [hereinafter Messages].

105Id. at 75.

106Id. at 99.

107Act of May 8, 1792, 1 Stat. 271.

needed to meet sundry emergencies.100 As in post-1689 England, the standing army was denounced,(pg.26) derided, and retained.

The parallel Whig view, which stressed the desirability of a true militia, had a longer leaseon life. Pre-1789 American political thought had stressed the need to enroll all citizens, or at leastall free holders, for militia duty, and had rejected any idea of a "select militia" in which only aportion of the population was enrolled.101 Provisions authorizing Congress to provide for the armingand organizing of the national militia were seen as allowing it to require that all citizens possessarms of uniform caliber and conform to a standard of drill.102 In practice, while variousadministrations prepared detailed plans along these lines, Congress refused to enact them.103

Washington's first annual address acknowledged: "[a] free people ought not only to be armed, butdisciplined; to which end a uniform and well-digested plan is requisite."104 His second addresscourteously hinted that the "establishment of a militia" was among the "subjects which I presumeyou will resume of course, and which (pg.27) are abundantly urged by their own importance."105 Oneyear later, Washington again listed militia legislation as "a matter of primary importance whetherviewed in reference to the national security to the satisfaction of the community or to thepreservation of order."106 In 1792, Congress voted out the first (and, until 1903, the last) nationalMilitia Act.107 While this Act required all white males of military age to possess a rifle or musket (or,if enrolled in cavalry or artillery units, pistols and a sword), it did nothing to guarantee uniformityof calibers, fixed no standard of national drill, and failed even to provide a penalty for

1081 Messages, supra note 104, at 132 (Washington, 1793: suggests examination of the Militia Act is "an inquiry which

cannot be too solemnly pursued"); id. at 176 (Washington, 1795); id. at 317 (Jefferson, 1801: Congress should "at every sessioncontinue to amend the defects which from time to time shew themselves in the laws for regulating the militia"); id. at 333 (Jefferson,1802: considering the importance of the militia, "you will doubtless think this institution worthy of a review, and give it thoseimprovements of which you find it susceptible"); id. at 360 (Jefferson, 1804: "Should any improvement occur in the militia system,that will be always seasonable"). After all these efforts, Congress still failed to attempt any significant improvements. By 1805, evenJefferson was reduced to asking for a select militia, which had been anathema even to conservatives a few years before: "I can not,then, but earnestly recommend to your early consideration the expediency of so modifying our militia system as, be a separation ofthe more active part from that which is less so, we may draw from it when necessary an efficient corps fit for real and active service,and to be called to it in regular rotation." Id. at 373.

109L. Cress, supra note 96, at 176.

110B. Bailyn, supra note 9, at 200-05.

111As a modern British writer put it:

It follows from all this that there is nothing rigid or static about the English Constitution. Not being set out ordeclared in any sacrosanct document nor hedged in by some special procedure of amendment, it can be changedor modified in any or every particular by the ordinary process of legislation. It can be reformed in any part byan ordinary Act of Parliament assented to in the ordinary way.

S. B. Chrimes, English Constitutional History 9 (2d ed. 1953). Madison's attack on the Alien and Sedition Acts still stands as animpeccable sketch of the difference between the English and American understandings:

In the British Government the danger of encroachment on the rights of the people is understood to be confinedto the executive magistrate. The representatives of the people in the Legislature are not only exempt themselvesfrom distrust, but are considered as sufficient guardians of the rights of their constituents against the danger fromthe Executive. Hence it is a principle, that the Parliament is unlimited in its power; or, in their own language,is omnipotent. Hence too, all the ramparts for protecting the rights of the people—such as the Magna Carta, theirBill of Rights, [etc.]—are not reared against the Parliament, but against the royal prerogative .... In the UnitedStates, the case is altogether different. The People, not the Government, possess the absolute sovereignty. TheLegislature, no less than the Executive, is under limitations of power.

R. Buel, Securing the Revolution: Ideology in American Politics 1789-1815, at 249 (1972).112

See generally, H. Colbourn, supra note 8, at 166-67. As Franklin wrote in 1770, "The sovereignty of the Crown Iunderstand the sovereignty of Britain I do not understand.... We have the same King, but not the same legislature." Namier, KingGeorge III: A Study of Personality, in Causes and Consequences of the American Revolution 193, 197 (E. Wright ed. 1966). Thenotion that the colonists' fight was with Parliament and its ministers and not with George III was hard dying. Even after the fightingat Concord, Washington would write of "the Ministerial Troops (for we do not, nor cannot yet prevail upon ourselves to call themthe King's troops)." 3 Writings of George Washington 291 (J. Fitzpatrick ed. 1931).

noncompliance. The subsequent presidential calls for detailed organization of a national citizenarmy108 went unheeded. The original ideal of the militia thus ultimately went the way of the standingarmy controversy: "The ideological assumptions of revolutionary republicanism would no longerplay an important role in the debate over the republic's military requirements."109

B. The Dominance of the Right to Arms

Conversely, even as the republican militia concept weakened throughout the eighteenthcentury, the concept of an individual right to arms became more firmly entrenched in Americanthought. To a great extent, this was a part of a larger intellectual movement. The primary legacy ofthe 1689 settlement in England had been the supremacy of Parliament. Bodin's maxim that in everygovernment (pg.28) there must be a single, ultimate repository of sovereignty was accepted,110 and thatrepository was fixed as Parliament. While Parliament must heed the "Constitution", the Constitutionwas (with apologies to a later Chief Justice) what Parliament said it was.111 The colonists, whoseinitial conflict was with Parliament and not the King,112 necessarily had to take issue. One counter

113J.G.A. Pocock, The Ancient Constitution and the Feudal Law 36-55 (1967). See generally C. Bowen, The Lion and

the Throne (1957).114

Dr. Bonham's Case, 77 Eng. Rep. 646, 652 (1610).115

C. Bowen, supra note 113, at 381-83.116

J. Baker, An Introduction to English Legal History 92-93 (1979).117

In the Stamp Act crisis alone, the passage was cited by James Otis, John Adams, and Patrick Henry. C. Bowen, supranote 113, at 315-16.

118Blackstone, for instance, noted: "Both the life and limbs of a man are of such high value, in the estimation of the law

of England, that it pardons even homicide committed se defendo (in self defense) or in order to preserve them." 1 W. Blackstone,Commentaries *310. See generally Caplan, The Right of the Individual to Bear Arms: A Recent Judicial Trend, 4 Det. C.L. Rev. 789,804-06 (1982).

119The article was one of the "Journal of the Times," which was written anonymously in Boston, published there and

in New York and Philadelphia, and thereafter reprinted widely throughout the colonies. B. Bailyn, supra note 9, at 115 n.21.120

O. Dickerson, Boston Under Military Rule 79 (1936).121

Halbrook, supra note 3, at 280 (citing North Carolina Gazette (Newburn), July 7, 1775 at 2, col. 3).

was to amplify the concept of rights which existed somehow beyond the scope of any governmentalinterference.

The most historical approach involved deriving such right from common law. This involvedaccepting Coke's position that the common law was immemorial and suprahuman, the product notof any one legislator or legislative act, but of the collective intelligence and experience ofEnglishmen over a millenium or more.113 Few dicta have had as great an impact on legal history asthe equivocal passage Coke slid into Dr. Bonham's Case:(pg.29)

And it appears in our books, that in many cases, the common law will controul Acts ofParliament, and sometimes adjudge them to be utterly void: for when an act of Parliamentis against common right an reason, or repugnant, or impossible to be performed, thecommon law controul it, and such Act to be void....114

Coke's language led to his removal as Chief Justice,115 and his holding was overruled byproclamation,116 but his words became sacred writ to the Americans.117

Derivation of a common law right to arms took little effort. Even the earliest common lawjurists had recognized a right to self-defense and to the possession of arms for that purpose.118 Therecognition of an individual right to arms in the 1689 Declaration made the matter all butindisputable. The colonists took to heart Blackstone's derivation of an individual right to arms fromboth these sources. When, during the Stamp Act crisis, objection was raised to a call for all citizensto procure arms, newspaper articles published throughout the colonies119 proclaimed:

It is a natural right which the people have reserved to themselves, confirmed by the Bill ofRights, to keep arms for their own defence; and as Mr. Blackstone observes, it is to be madeuse of when the sanctions of society and law are found insufficient to restrain the violenceof oppression.120

In similar vein, members of the Continental Congress exhorted the Committees of Safety that "[i]tis the Right of every English subject to be prepared with Weapons for his Defense."121

122H. Colbourn, supra note 8, at 190.

123Id. at 126, 190.

124C. Rossiter, supra note 94, at 352.

125Id. at 377; 1 B. Schwartz, infra note 142, at 448.

126J.G.A. Pocock, supra note 113, at 20.

127F. Hotman, Franco Gallia (R. Molesworth trans., London 1711).

128The compact theorists were not burdened with the data generated by modern archaeology, which suggest that the

choice of tribal leaders occurred among Cro-Magnons, some tens of millennia ago. See Pfeiffer, Cro-Magnon Hunters Were ReallyUs, Working Out Strategies for Survival, 17 Smithsonian 74, 82 (1986).

129Hobbes' appeal to power and consent as the basis of dominion upset the royalists, while his assertion that popular

consent once given could never be modified or revoked (absent failure of the sovereign to perform the sole duty of protection)alienated their opposition. Hobbes was concerned, after the Restoration, that Royalists might have him burned for heresy; as it was,they settled for burning his books at Oxford. C. Hill, supra note 34, at 249. During our own colonial period, he was "denounced asfrequently by loyalists as by patriots." B. Bailyn, supra note 9, at 28-29.

130T. Hobbes, Leviathan ch. 14 at 107 (reprint 1950) (1651).

131Id. at 116.

But the common law was not the only source of rights theory, (pg.30) particularly when, after1776, the conflict became one with the entire British system and not merely Parliament.122 SomeAmericans reconciled their views with tradition by claiming that American views were a purifiedcommon law which lacked later British corruptions.123 Others went behind the common law,claiming it only declared some natural rights.124 The major American thinkers were even bolder.Washington wrote with pride that "the foundation of our empire was not laid in the gloomy age ofignorance and superstition," and Madison calmly explained that our Constitution declined toincorporate the common law because many of its principles were anti-republican.125 One source ofthe new rights theory lay in the various "compact" theories of government, which sought the originsof the state in implicit agreements rather than in divine commands. The civilian jurist Hotman hadinitially argued for such a view in his 1572 work Franco Gallia126 which became available in Englishthrough Molesworth's 1711 translation.127 To Hotman, the compact theory represented liberationfrom autocracy founded upon "divine right" or supposed tradition: his research sought to tracegovernment among what became the French people to democratic tribal arrangements, which in turnwere suppressed by usurping monarchs.128

A more abstract (and less democratic) view was taken by Thomas Hobbes in his 1651Leviathan.129 To him, government was founded upon a compact of mutual protection. Thefundamental rule of nature was "to seek peace and follow it" and, conversely, (pg.31) "the second, thesum of the right of nature" was "by all means we can, to defend ourselves."130 This right was sofundamental that it could not be included in the compact: "A Covenant not to defend my selfe fromforce, by force, is alwayes vod. For (as I have shewd before) no man can transfere, or lay down hisRight to save himselfe from Death...."131 While Hobbes is often seen as laying the foundations for

132This view is not completely fair: Hobbes in fact admits that his sovereign can be a democratic government: "The

legislator in all Common-wealths, is only the Soveraign, be he one Man, as in a Monarchy, or one Assembly of men, as in aDemocracy, or Aristocracy." Id., ch. 26 at 226. Hobbes also seems to accept that a government might be one of limited powers,although he clearly regards this as a mistake: "Amongst the Infirmities therefore of a Common-wealth ... this is one, That a man toobtain a Kingdome is sometimes content with lesse power, than to the Peace, and defence of the Common-wealth is necessarilyrequired. From whence it commeth to passe that when the exercise of the Power layd by, is for the publique safety to be resumed,it hath the resemblance of an unjust act...." Id., ch. 29 at 276.

133Id., ch. 21 at 117.

134The doctrine of nonresistance (which was derived from the Pauline epistles and early Christian martyrology)

maintained that Christians were required to submit to a ruler, no matter how unjust; indeed, the reliance upon the submission of earlyChristians to martyrdom indicated that submission was required even to a pagan ruler bent upon extirpating Christianity. Seegenerally G. Senssbaugh, That Grand Whig Milton (1952). The seriousness with which this was taken can be seen in the aftermathof the Seven Bishops' Case, in which James II prosecuted seven Anglican bishops for seditious libel. After James was overthrownin the Glorious Revolution, a majority of the seven were forced to resign by the new government because they were "nonjurors,"unable in conscience to take an oath recognizing William and Mary as sovereigns. Whatever his actions toward them, their nationor their church, James was still their monarch, to whom submission was due. C. Hill, supra note 34, at 238.

135See generally Morgan, The American Revolution Considered as an Intellectual Movement, in Causes and

Consequences of the American Revolution 172, 182-86 (E. Wright ed. 1966).136

J. Barlow, Advice to the Privileged Orders in the Several States of Europe, Resulting from the Necessity and Proprietyof a General Revolution in the Principle of Government 46 (reprint 1956) (London 1792).

137See generally B. Bailyn, supra note 9, at 27. See also C. Rossiter, supra note 94. "In pamphlet after pamphlet,

American writers cited ... Beccaria on the reform of the criminal law, Grotius, Pufendorf, Burlamqui and Vattel on the laws of natureand of nations, and on the principles of civil government. The pervasiveness of such citations at times astonishing." Id. at 359.

absolute monarchy,132 he in fact admits one circumstance under which the monarch may justly bereplaced by his subjects:

The Obligation of Subjects to the Sovereign is understood to last as long, and no longer,than the power lasteth, by which he is able to protect them. For the right men have byNature to protect themselves, when none else can protect them, can by no Covenant berelinquished.133

A different rationalist basis for colonial derivations of rights encompassed supernaturalorigins, whether seen as God or nature. The Anglican church, hamstrung by its acceptance ofnon-resistance,134 was unable to make much contribution here, but the slack was more than taken upby the Congregationalist, Baptist and Presbyterian divines who played so major a role in promotingthe patriot (pg.32) cause.135 Joel Barlow, a chaplain in Washington's army, thus derived a right to arms:

Only admit the original, unalterable truth, that all men are equal in their rights, and thefoundation of every thing is laid; to build the superstructure requires no effort but that ofnatural deduction. The first necessary deduction will be, that the people will form an equalrepresentative government.... Another deduction follows, That the people will be universallyarmed: they will assume those weapons for security, which the art of war has invented fordestruction.136

Many colonists also consulted European natural law theorists in hopes of defining the rightsof men.137 These thinkers commonly stressed an individual right or duty to self defense as the verycore of individuality. Pufendorf, deriving natural law from man's instincts toward society, concludedthat (at least for a person with dependents) a failure to use necessary deadly force to defend himselfis a violation of natural law and a sin:

138Pufendorf, De Jure Naturae et Gentium: Libri Octo (C. & W. Oldfather trans.) in The Classics of International Law

265-266 (J. Scott ed. 1934).139

J.J. Burlamaqui, The Principles of Natural and Politic Law (Nugent trans. 5th ed. Cambridge 1807). The jurist goeson to note that "To kill a man, for instance, is a bad action in a robber, but is lawful or good ... in a citizen or soldier, who defendshis life or country...." Id. at 121.

1404 Journals of the Continental Congress 342 (W. Ford ed. 1906).

Nor indeed should it be thought that the law of nature, instituted as it was for the safety ofman, favors such a peace as would cause his immediate destruction, and bring aboutanything but a social life.... Now there are some who would carry this command so far thatit could not be abrogated even by civil law, maintaining that the man who allows himselfto be killed when he could have defended himself, can be condemned on the same score asif he had killed himself.... To us it seems necessary to consider first of all, whether it is ofany great concern to others that the person who is attacked survive, or whether, as a matterof fact, he apparently lives only to himself. We hold that in the former case the man isobligated to secure his own protection by every means possible, but, in the latter case wemaintain that it is only permissible....138

(pg.33)

Burlamaqui went farther, maintaining the natural law of self-preservation might be deduced fromreason as well as social instincts. "Let us suppose man in solitude; he would still have several dutiesto discharge, such as to love and honour God, to preserve himself, to cultivate his faculties...."139

Thus, the intellectual bases for an individual right to bear arms expanded at the same timethat the practical bases for the militia system declined. Both principles, however, are immortalizedin the second amendment to the Constitution. We might suspect that this is the remnant of a periodin which the decline of the republican militia ideal overlapped the origin of the Enlightenment andJeffersonian/Jacksonian democracy. To test this hypothesis will require a detailed examination ofboth the militia and the right to arms concepts during the formation of the American republic.

IV. The American Right to Arms

A. The Prototypes: Virginia, Pennsylvania and Massachusetts

In the summer of 1776, the Continental Congress recommended that the former colonies"adopt such governments as shall, in the opinion of the representatives of the people, best conduceto the happiness and safety of their constituents, and Americans in general."140 While not every stateresponded with a bill of rights (or, for that matter, a new constitution), a significant number did soas to enable us to trace the process whereby certain rights became codified in declarations of rights.Since drafters of each declaration were conversant with the work of their predecessors and duplicatedor differed as they saw fit, it also becomes possible to compare how different factions phrasedparticular rights.

The ancestry of the second amendment can be found in the declarations of rights adopted byVirginia, Pennsylvania and Massachusetts. The different approaches taken by each state give insightinto (pg.34) the differences of opinion over which component, militia or right to arms, was mostdeserving of recognition.

1. Virginia and the Well-Regulated Militia

1411 Papers of Thomas Jefferson 344 (J. Boyd ed. 1950). Jefferson's draft indicates he toyed with adding the words

"within his own lands" at the end of this guarantee. See id. at 353. Like many Virginia landowners, Jefferson had probably hadtroubles with trespass and poaching. Washington, for example, had to post notices, publish handbills, and write letters to hisneighbors in vain efforts to stop such poaching. See 37 Writings of George Washington 194 (J. Fitzpatrick ed. 1940). Jefferson'sproposals also would have divided State lands among persons owning no lands, or less than fifty acres apiece, would have providedthat they would be held in fee simple (a reflection of his opposition to fee tail, which was still permitted in Virginia), and would havebarred transfer of State lands "until purchased of the Indian native proprietors". 1 Papers of Thomas Jefferson, supra, at 362.

142Traditionally, the Bill of Rights is ascribed to Mason. This attribution is based in large part on Edmund Randolph's

recollection that Mason's proposals "swallowed up all the rest." 1 B. Schwartz, The Bill of Rights: A Documentary History 247(1971). Recent evidence suggests, however, that the relevant portion was added by the committee, albeit taken almost verbatim fromMason's Fairfax Resolves. See H. Miller, George Mason: Gentleman Revolutionary 148 (1975). On the other hand, there also isevidence that the Fairfax Resolves were more of a committee effort than has previously been supposed. See Sweig, A New-FoundWashington Letter of 1774 and the Fairfax Resolves, 40 Wm. & Mary Q. (3d. Ser.) 283 (1983). It is clear in any event that the bodyof the Virginia Constitution was in fact a committee effort, based on submission of a number of plans. See 1 Papers of ThomasJefferson, supra note 141, at 337.

1437 F. Thorpe, The Federal and State Constitutions 3814 (1909).

144D. Malone, Jefferson the Virginian 195 (1948).

145K. Rowland, Life of George Mason 104 (1892); 83 The Diaries of George Washington 71 (D. Jackson ed. 1978)

("[November] 27. [1771.] Set off before sunrise with John Custis for Colo. Masons and went a driving [deer] in his Neck afterbreakfast—2 deer killed. [November] 28. Went a driving again with Colo. Mason—killed nothing.").

146J. Main, The Sovereign States 1775-1783, at 156 (1973).

147Id. at 157; 1 Papers of Thomas Jefferson, supra note 141, at 366.

Virginia's Constitution and Bill of Rights were the first adopted after the Declaration ofIndependence. While records of the actual deliberations are limited, it is known that ThomasJefferson drafted a document worthy of the Enlightenment. Jefferson's draft would have extendedthe franchise to any taxpayer, divided state lands among the landless citizens, ended importation ofslaves, and banned the establishment of religion. His proposal did not mention the militia or its rolein a republic, but did include a clearly individual right to arms: "No freeman shall ever be debarredthe use of arms."141

Virginia's legislature chose instead a constitution and bill of rights drafted by committee, andtaken predominantly from the proposals of the more conservative George Mason.142 The prevailingversion omitted any mention of individual arms and substituted a recognition that: "A well-regulatedmilitia, composed of the body of the people, trained to arms, is the proper, natural, and safe defenceof a free State."143

It is unlikely that the choice was dictated in this case by a conflict (pg.35) of values. Jefferson,who had served on the committee to organize the Virginia militia,144 was an unlikely opponent ofthe militia concept. Mason, who was a firearms collector and George Washington's huntingpartner,145 was an improbable supporter of individual disarmament. The difference is more one ofemphasis. The Constitution as adopted looks predominantly to maintenance of the status quo. Thiswas predictable since the members of the committee charged with the initial drafting werepredominantly large land-owners.146 Mason's original draft contained a substantial propertyrequirement for legislators—only citizens owning 1,000 pounds worth of real estate could run forthe lower house, while only those with twice that freehold could run for the upper.147

In more general terms, the primary concern of the 1776 constitution is (as it was withHarrington and his followers) the establishment of a stable republic. Indeed, the original draft did

148Hunt, James Madison and Religious Liberty, Proceedings of the 17th Annual Meeting of the American Historical

Society 165, 166-67 (1901). Madison later recollected that Mason had "inadvertently adopted" the word "toleration." 1 Papers ofThomas Jefferson, supra note 141, at 250. This is consistent with the hypothesis that Mason differed from Jefferson and the Radicalsnot so much in values as in perspective. To Mason, the object was to establish a stable republic, which would naturally respectindividual rights, while to Jefferson the object was to reserve the rights and let the republic form within those reservations.

149Toleration Act, 1 W. & M. 18 (1689). The Act begins: "Forasmuch as some ease to scrupulous consciences in the

exercise of religion may be an effectual means to unite their Majesties' protestant subjects in interest and affection ...."150

See generally Hunt, supra note 148.151

31 Writings of George Washington 93 (J. Fitzpatrick ed. 1939).152

1 Papers of Thomas Jefferson, supra note 141, at 504.153

See generally Doerflinger, Philadelphia Merchants and the Logic of Moderation 1760-1775, 40 Wm. & Mary Q. (3dSer.) 197 (1983).

not recognize a "right" to freedom of religion, but rather a "toleration of the exercise of religion,"148

along the lines of the British Toleration Act, which for practical grounds exempted certain faithsfrom the ban on non-establishment churches.149 Only the intervention of the novice legislator JamesMadison150 enabled an American president to later boast: "It is now no more that toleration is spokenof, as if it was by the indulgence of one class of people, that another enjoyed the exercise of theirinherent natural rights."151 The Virginia Declaration (pg.36) thus looks backward to the classicalrepublic and concern for the state; Jefferson's unsuccessful draft, in contrast, looked forward to theform of democracy which would take his name. The gap between the Harringtonian republic andJeffersonian democracy was clearly demonstrated in Jefferson's explanation of his draft:

I was extending the right of suffrage (or in other words the rights of a citizen) to all who hada permanent intention of living in the country. Take what circumstance you please asevidence of this, either the having resided a certain time, or having a family, or havingproperty, any or all of them. Whoever intends to live in a country must wish that countrywell, and has a natural right of assisting in the preservation of it.152

The contrast between Mason's and Jefferson's proposals highlights a correlation which will be foundin later efforts by other states. Those constitutions which maintained the Classical Republican linkbetween land ownership and electoral participation also stressed its ideal of militia institutions.Those constitutions which accepted the Radical foundation of near-universal manhood suffragelargely ignored the militia ideal but stressed individual rights to arms.

2. Pennsylvania and the Individual Right to Arms

Pennsylvania adopted a bill of rights only a few months after Virginia, yet its politicalsituation was nearly opposite that present in Mason's state. While Virginia's establishment becamethe leadership of its revolutionary movement, the Pennsylvania establishment lagged behind and wasoverthrown by the Quaker State's revolutionary movement. The pre-1776 legislature was dominatedby the wealthier families; unlike Virginia's ruling gentry, their wealth was primarily based onshipping and commerce. The threat to trade posed by the split with Britain understandably madesuch men wary of independence.153 The revolutionary movement, in contrast, had its primarystrongholds in the more sparsely populated, agrarian West, as well as a secondary base among the

154See generally J. Selsam, The Pennsylvania Constitution of 1776: A Study in Revolutionary Democracy (1936); Gough,

Notes on the Pennsylvania Revolutionaries of 1776, 96 Pa. Mag. 89 (1972).155

Harding, Party Struggles Over the First Pennsylvania Constitution, Annual Report of the American HistoricalAssociation 371-72 (1895).

156Id. at 374.

157One historian noted in a recent work:

Aristocratic Whigs described the militia privates as "in general damn'd riff raff—dirty, mutinous anddisaffected." The militia described themselves as "composed of tradesmen and others, who earn their living bytheir industry ..." [A] check of one militia company roster against the published tax lists for Philadelphia revealsthat of sixty-seven names, almost half (twenty-nine) appeared on no tax list between 1769 and 1781 .... For suchmen, participation in the militia was the first step in the transition from crowd activity to organized politics. Likethe New Model Army of the English Civil War, the militia was a "school of political democracy."

E. Foner, Tom Paine and Revolutionary America 63-64 (1976).158

Harding, supra note 155, at 376.159

Pa. Const. § 6 (1776), reprinted in 5 F. Thorpe, supra note 143, at 3084.

apprentices and "mechanics" (in modern terms, the labor movement) of Philadelphia.154 (pg.37) As onewriter of the last century, himself sympathetic to the aristocracy, phrased it:

At the beginning of the contest with Great Britain the control of affairs in Pennsylvania wasstill in the hands of the aristocratic element of the province, which centered in Philadelphiaand the richer and more thickly settled counties adjacent thereto, and whose powerpolitically was supported by the requirement of a 50 pound property qualification for thefranchise ... [T]he assembly lent but a lukewarm support to the patriot cause, and manymeasures earnestly desired by the patriot leaders failed in that body because of the innatecaution and conservatism of its members.

There was, however, another element well suited by temper and circumstances toplay the part desired by the radical leaders, if only power in proportion to its numbers couldbe given it. This was the democracy, the party of the country, as the other was the party ofthe city. Its strength lay chiefly in the back counties, where the independent life of the settlerand farmer, and the practical uniformity of material conditions, naturally stimulated thedemocratic instinct.155

The Radical forces launched a successful assault on the opposition. Following the ContinentalCongress' call for new state constitutions, the Committees of Safety arranged extralegal electionsfor representatives to a constitutional convention. Each county would elect an equal number ofdelegates (thus weighting the convention against the more populous eastern counties) and theproperty requirement was waived for the militia,156 who comprised much of those counties'revolutionary element.157 In the meantime, Radical members of (pg.38) the assembly absentedthemselves; their departure deprived that body of a quorum and paralyzed any possiblecounterattack. The aristocratic elements were neatly trapped; to run for the constitutional conventionwould be to endorse its legitimacy without gaining any reasonable chance of winning its control.Many instead sat out the election, leading to a convention as dominated by the Radicals as Virginia'shad been by the gentry.

The convention's product has been described as the "most democratic form of governmentever tried by an American State."158 The fifty pound franchise requirement was replaced with onethat enfranchised any taxpayer over the age of twenty-one.159 It was probably Benjamin Rush, oneof the losing aristocrats, who complained of the power placed in the hands of the citizenry: "They

160Harding, supra note 155, at 386. Harding himself complains that the supporters of the 1776 document were men of

obscure birth, of little education or property, and of the narrowest views, "the party of the democracy—suspicious, bigoted, easilyswayed by demagogues ...." Id. at 383-84.

1611 B. Schwartz, supra note 142, at 262.

162J. Adams, Diary and Autobiography 391 (L. H. Butterfield ed. 1964).

163Most noticeably, Pennsylvania added rights to freedom of speech (Virginia recognized, probably through oversight,

only that of the press) and assembly. See 1 B. Schwartz, supra note 142, at 262-263.164

Pa. Declaration of Rights, § 12 (1776), reprinted in 5 F. Thorpe, supra note 143, at 3083. The constitution itself didprovide for the militia—but with businesslike statements that all "freeman" shall be "trained and armed" under legislative direction.Pa. Const. § 5 (1776), reprinted in 5 F. Thorpe, supra note 143, at 3084. There is no statement of the militia's necessity or role in arepublic, but simply a practical provision for its organization.

165J. Main, supra note 146, at 166-69. Main points out that some counties sent delegates with a mandate to "oppose

everything that leans to aristocracy" while other delegates noted that their main concern was "how to establish a check on therepresentatives of the people."

call it a democracy—a mobocracy in my opinion would be more proper. All our laws breathe thespirit of town meetings and porter shops."160

Pennsylvania became the second state to adopt a bill of rights; a comparison with Virginia'sproduct is all the more instructive since the Pennsylvania convention obtained copies of the VirginiaBill of Rights and were able to use it as a model.161 Indeed, John Adams later noted that their "billof rights is almost verbatim from that of Virginia."162 "Almost" is, however, a word that bearsemphasis. Individual rights are given greater scope in the Pennsylvania declaration than in that ofVirginia.163

Pennsylvania clearly departed from the Virginia approach when it deleted the Virginiareference to well regulated militias and added a new recognition: "That the people have a right tobear arms for the defense of themselves and the State...."164 The "themselves (pg.39) and the State"proviso seems superfluous, but it reinforces the distinction between the Radicals' recognition of anindividual right (against, it should be noted, even the government they now dominated) and theVirginia gentry's simple praise of a militia system as necessary to their "republic." The Radicals ofthe Pennsylvania convention thus repudiated Mason's Harringtonian model (which linked landownership, political rights, and militia duty) in favor of the Jeffersonian formula of universalsuffrage and an individual right to arms.

The future federal second amendment was thus the direct descendant, not of any one model,but of two distinct products of two different political outlooks. The militia component is ultimatelyderived from the work of the Virginia convention, which made no effort to define a right to arms.The second amendment's right to arms component is a direct descendant of the work of thePennsylvania Radicals, who sought an unquestionably individual right and considered a militiastatement superfluous.

3. North Carolina, Massachusetts and the Unsuccessful Compromise

A third approach deserves mention, not because it was a progenitor of the secondamendment, but because it was available as a model in 1791 and was specifically rejected by the firstCongress. This approach was taken, only a few months after the Pennsylvania convention, by NorthCarolina. That state's convention was split between Republican and Democratic elements, and itsproduct reflected the need for compromise.165 Under the constitution they voted out, all taxpayerscould vote for the lower house, while those with fifty acres or more of land could vote for the upper

166N.C. Const. §§ 5, 6, 15 (1776, amended 1835), reprinted in 5 F. Thorpe, supra note 143, at 2790-2791.

167N.C. Declaration of Rights § 17 (1776), reprinted in 5 F. Thorpe, supra note 143, at 2788.

168See Z. Haraszti, John Adams and The Prophets of Progress 34-35 (1952).

169Id. at 35-37.

170Id. at 37-40. It is difficult to find a sharper contrast than that between Jefferson's defense of near-universal

sufferage—"my observations do not enable me to say I think integrity the characteristic of wealth. In general I believe the decisionsof the people, in a body, will be more honest and more disinterested than those of wealthy men ...." 1 Papers of Thomas Jefferson,supra note 141, at 504, and Adams' argument that "the men in general, who are wholly destitute of property, are also too littleacquanted with public affairs to form a right judgment ...." Z. Haraszti, supra note 168, at 36.

171Mass. Const. art. V, § 2 and art. III, § 3 (1780, amended 1840)), reprinted in 3 F. Thorpe, supra note 143, at 1897-98.

172For example, provisions were included which authorized support of "public Protestant teachers of piety, religion and

morality"; they also noted that "Each individual of the society ... is obliged, consequently, to contribute his share to the expense ofthis protection ...." Mass. Const. arts. III, X (1780, amended 1911), reprinted in 3 F. Thorpe, supra note 143, at 1890-91.

173"The people have a right to keep and to bear arms for the common defence." Mass. Const. pt. I, art. XVII, reprinted

in 3 F. Thorpe, supra note 143, at 1892.

as well. On the other hand, the actual candidates were subject to stricter requirements; the governormust own 1,000 pounds worth of land, members of the upper and lower houses 300 and 100 acres,respectively.166 (pg.40) The franchise was thus quite broad, while the privilege of seeking office wasconsiderably narrowed. The convention took a similarly eclectic approach to a bill of rights.

North Carolina took its Declaration of Rights primarily from Virginia. However, it replacedMason's paean to the militia with a variant of the Pennsylvania approach: "[T]he people have a rightto bear arms, for the defense of the state...."167 The omission of the militia statement on the one hand,and the recognition of an individual right—but only for defense of the State—seems an uneasybalance between the Virginia and the Pennsylvania models. Massachusetts' 1780 Constitutionexpanded upon this third approach. Its chief author was John Adams, probably the colonies' mostdevout Harringtonian168 whose fears that excessive democracy would lead to anarchy169 gave forceto Jefferson's accusations that Adams was a closet Monarchist.170

The Massachusetts Constitution and Bill of Rights drew heavily upon those of Virginia.Members of the lower house were required to have freehold estates of 100 pounds, and those of theupper house were required to own 300 pounds.171 The Bill of Rights largely focused upon the natureof the government, occasionally going so far as to codify its powers rather than restrain them.172

Adams chose an unusual mode of coping with the question of arms and militia provisions.He took the language of the Pennsylvania convention, expanded it somewhat by recognizing for thefirst time a right to "keep" as well as to "bear" arms, but then qualified (pg.41) the entire provision byrecognizing the resulting right only with regard to the common defense.173 Given Adams'outstandingly Harrington viewpoint, the qualifier is hardly a surprise, although how it can bereconciled with his original proposal to recognize a right to "keep" arms is unclear. Possibly, toAdams, the proviso was meant simply as an explanation along the lines of the statements of socialduty mentioned above, and not as an operative qualifier. Perhaps Adams simply felt a need toreconcile his creation with his philosophy and thus added a clause tying a radically-conceived rightinto a Harringtonian set of political values. The most likely explanation lies, however, in Adams'legal background and in his general suspicion of the people and of mobs. To "keep" arms was, afterall, a more precise rendition of the 1689 English Declaration than the "to bear" language used in theother state conventions. The 1670 English Hunting Act, prohibiting arms to the poor, had used thephrase "have or keep," and the phrase "keep arms" recurs in post-1692 English case law interpreting

174See J. Smith, Constitutional Right to Bear Arms 16-26 (1959) (unpublished manuscript).

1756 Works of John Adams, Second President of the U.S. 197 (C. Adams ed. 1851). Adams, however, was not a defender

of the select militia concept. See Halbrook, The Right to Bear Arms, supra note 3, at 314 (citing Adams in 1823: "The Americanstates have owed their existence to the militia for more than two hundred years. A select militia will soon become a standing army....").

176The Popular Sources of Political Authority: Documents on the Massachusetts Convention of 1780, at 624 (O. & M.

Handlin eds. 1966).177

Clune, Joseph Hawley's Criticism of the Constitution of Massachusetts, 3 Smith C. Stud. Hist. 15 (1917).

the Act as modified after the Declaration of Rights.174 To this extent, Adams' work was what wewould expect from one of the premier attorneys of the colonies. The qualifier "for the commondefense" may share similar roots. If Adams was going to recognize, in precise legal terms, a rightto own or carry firearms as a citizen pleased, he was going to reserve the power to suppress armedriots. Some seven years later, in his Defense of the Constitution, Adams would write:

To suppose arms in the hands of citizens, to be used at individual discretion, except inprivate self-defense, or by partial orders of towns, countries or districts of a state, is todemolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by noman; it is a dissolution of the government. The fundamental law of the militia is, that it becreated, directed and commanded by the laws, and ever for the support of the laws.175

Adams was thus mindful of the uses of arms (i.e., legitimate self-defense (pg.42) and militia duty) andconcerned about misuse for mob action or anarchy. With far greater precision than is typical inconstitutional processes, he sought both to ensure the breadth of the right he desired and to fix itsboundaries.

The popular reaction to his proposal illustrates forcefully that many ordinary citizens did notshare his fears of the people, and on the contrary feared the exercise of government power that mightbe allowed under his "common defense" proviso. A meeting of the citizens of Williamsburg objectedto the language, noting that "we deem it an essential privilege to keep Arms in our Houses for OurOwn Defense" and that the qualifier might be read to allow government to "Confine all the fire Armsto some publick Magazine."176 In Northampton, an objection was raised that the right to keep andbear arms "is not expressed with that ample and manly openess and latitude which the importanceof the right merits" and should be changed to "The People have a right to keep and bear arms, aswell, for their Own as the Common defence ...."177

In sum, by 1780 there were three major state models for dealing with the question of populararmaments: the Virginia or Harrington/Gentry model, stressing a well-regulated militia; thePennsylvania or Jeffersonian/Radical model, stressing an individual right to bear arms; and theMassachusetts development of the North Carolina model, stressing a right both to keep and to beararms, but only for the common defense. It is worth noting that at the state level, only thePennsylvania model withstood the test of time. After 1780, both the Virginia and the Massachusetts

178Virginia's approach prevailed only in Maryland, whose 1776 constitution recognizes that "a well-regulated militia

is the proper and natural defence of a free government." Maryland Declaration of Rights § 25 (1776), reprinted in 3 F. Thorpe, supranote 143, at 1688. Maryland's 1776 Constitution also imposed varying property requirements for voting and candidacy, ranging from50 acres of land to vote for the lower house, to 1000 acres for a state senator or any representative to the Continental Congress. Id.at 1691, 1695, 1696. "The property requirements contained in the Maryland constitution excluded almost 90 per cent of Maryland'smale taxpaying population from holding provincial office. Because of these restrictions, only ten percent could qualify for the lowerhouse and seven percent for the upper. The elite's dominance of the constitution accurately reflected the class structure of the society."Hoffman, The "Disaffected" in the Revolutionary South, reprinted in The American Revolution: Explorations in the History ofAmerican Radicalism 280 (A. Young ed. 1976). Today, the Massachusetts "common defense" model is followed in only 4 states ofthe 39 that have "right to arms" constitutional provisions: Maine, Massachusetts, Arkansas, and Tennessee. Dowlut & Knoop, supranote 3, at 177, 203.

179It was adopted, for example, in Kentucky in 1792, in Indiana in 1816, in Connecticut in 1818, and in Missouri in 1820.

Hardy, Armed Citizens, supra note 3, at 597 n.188.180

U.S. Const. art. I, sec. 8.

models fell into complete disuse,178 while the Pennsylvania model thrived in the age of Jeffersonian(pg.43) democracy.179

B. Militia and Individual Armament In the American Bill of Rights

In 1787, the Continental Congress summoned a convention to propose amendments to theArticles of Confederation. The decision by the delegates to the Constitutional Convention to insteaddraft a replacement compact offered Americans a rare and unique opportunity to dictate, consciouslyand in some detail, the terms by which they would be governed. With the exception of the ArticleI section 9 limitations on ex post facto laws, bills of attainder and peacetime suspensions of habeuscorpus, the convention's proposal did little to recognize individual rights. Conversely, it didexpressly grant Congress the power to raise and support armies, with no restriction save a two-yearlimit on any appropriations for that purpose, and also gave the power to provide for the organizing,arming and disciplining of the militia.180 The contrast between the breadth of these powers and thetraditional views of standing armies and militia organization predictably led to conflicts in theratifying conventions which were called in each state. It is out of these conflicts that our Bill ofRights arose.

1. Ratification Conventions Demand a Federal Bill of Rights

The omission of a bill of rights was a weak point of the proposed Constitution, and soonbecame the focus of opposition. The early conflicts critical to the gestation of the Bill of Rights camein Pennsylvania, Massachusetts and New Hampshire. These were soon followed by a series ofsimilar demands from Virginia, New York, and North Carolina. Each of these proposals thereforemerits consideration.(pg.44)

a. The Pennsylvania Minority

The Pennsylvania convention was the first to consider major criticism of the absence of afederal bill of rights. The criticism did not prevail, and the state ratified the Constitution withoutreservation. This action seems inconsistent with the same state's 1776 enumeration of rights and

181See supra notes 154-163 and accompanying text.

182See generally Harding, supra note 155.

183See id. at 383; 1 & 2 J. McMaster & F. Stone, supra note 101, at 419, 421, 482.

184See generally Alexander, The Fort William Incident of 1779: A Case Study of the Revolutionary Crowd, 31 Wm. &

Mary Q. (3d Ser.) 589 (1974). The militia citizen group was marching in support of price controls, which they argued werenecessitated by merchant speculation. In anticipation of the march, Wilson's home (nicknamed due to the sturdiness of itsconstruction, "Fort Wilson") was occupied by thirty or so of his supporters. During the march, a firefight broke out between theoccupants of the house and the militia; one occupant and several militiamen were killed. Although this may seem a comparativelytame affair by our standards, it was seen at the time as quite stunning; contemporaries wrote of "a convulsion among the people" and"[m]any flying the city for fear of [v]engeance." Id. at 589.

185See J. McMaster & F. Stone, supra note 101.

186The following discussions are based heavily upon J. McMaster and F. Stone, supra note 101. For most ratifying

conventions, the standard reference is The Debates in the Several State Conventions on the Adoption of the Federal Constitution(reprint 1966) (J. Elliot 2d ed. 1836). This work reports but little of the Pennsylvania convention, since Elliot relied upon reportspublished by a reporter apparently bribed by the Federalists to publish only the speeches of the two leaders of their group. J.McMaster & F. Stone, supra note 101, at v, 14-15. The relevant portions of the Pennsylvania proceedings are also reproduced at 1B. Schwartz, supra note 142, at 627-62.

187See, e.g., J. McMaster & F. Stone, supra note 101, at 116, 190, 314, 419, 421, 482.

188Id. at 420, 425. The exact nature of Whitehill's motion is unclear. He is stated to have moved the articles "which might

either be taken collectively, as a bill of rights, or separately, as amendments to the general form of government proposed." Id. at 421.Presumably, he sought ratification of an amended version of the proposed Constitution, which might well have raised problems initself.

189Id. at vi.

190Id. at 454.

stress upon protections of the individual.181 The explanation is simple: by 1787, the Philadelphiacommercial "empire" had struck back; the ratifying convention was heavily dominated by the easterncounties and their commercial aristocracy which, some three years later, would replace the 1776Constitution.182 In the 1790 state convention, the defending minority would include several of themen who in 1787 pressed unsuccessfully for a federal bill of rights—Robert Whitehill, John Smilieand William Findley.183

In any event, the leaders of the aristocracy who dominated the 1787 convention had littlereason to sympathize with an individual right to arms. Benjamin Rush's complaint that the 1776Pennsylvania Constitution institutionalized "mobocracy" has already been mentioned. James Wilson,leader of the pro-ratification forces, had recently been on the receiving end of the "Fort WilsonIncident," in which a firefight broke out between his supporters, barricaded in his house, and a bodyof Radical militiamen marching past in protest over the lack of price controls.184 His opponents, asnoted previously, were largely supporters of the 1776 Radical-Democratic Constitution.185

Available records of the Pennsylvania convention186 indicate that (pg.45) the lack of a federalbill of rights was an important issue, and perhaps the most important issue from the outset.187 Thedispute came to a head when Whitehill, seconded by Smilie, moved for a federal bill of rights.188 Themotion failed, 46-23, and the Federalist majority refused even to permit it or the vote to be enteredin the convention's journal.189 Whitehill and Smilie, joined by Findley and other delegates, publisheda pamphlet setting out their amendments and rationale; the pamphlet was in turn reprinted inPennsylvania newspapers.190

The minority's argument was hardly Harringtonian. The limited number of representativesunder the new Constitution would, they argued, present the danger that "men of the most elevatedrank will be chosen. The other orders in society, such as farmers, traders and mechanics ... shall be

191Id. at 472.

192Id. at 756.

193William Findley of Westmoreland, Pa., 5 Pennsylvania Magazine 444 (1881).

194J. McMaster & F. Stone, supra note 101, at 480.

195Id.

196See infra notes 222, 225.

197The later fifth and eighth amendments are taken almost verbatim from the Pennsylvania wording; the Pennsylvania

proposals also called for recognition of freedom of conscience, speech, press, and the establishment of protection against warrantsunsupported by evidence or not particularly describing the property to be seized. J. McMaster & F. Stone, supra note 101, at 461-63.

198Id. at 462-63.

199Id. at 462. Their proposals also, remarkably, added a guarantee that "the inhabitants of the several States shall have

liberty to fowl and hunt in seasonable time on the lands they hold, and on all other lands in the United States not inclosed, and inlike manner to fish in all navigible waters ...." Id. This provision was adapted from a similar guarantee in the 1776 State constitution,which was defended at the time as barring British-style Hunting Acts which could be used to disarm the populace. See Hardy, ArmedCitizens, supra note 3, at 596-97, 603 n.218.

totally unrepresented."191 This was not a criticism that would have moved John Adams, or likelyGeorge Mason, but Whitehill was a small farmer and a Jeffersonian192 and Findley had declinedappointment to the federal Constitutional Convention out of poverty.193

While they considered a standing army objectionable,194 the Pennsylvania minority hadscarcely a good word for the militia. Indeed, to them the danger was not that the Congress would failto adequately discipline the militia and thereby allow the republican tradition to lapse, but thatCongress might endanger individual liberties by too forcefully using its powers. Militia disciplineto them posed a danger to the individual:(pg.46)

[T]he personal liberty of every man, probably from sixteen to sixty years of age, may bedestroyed by the power Congress have in organizing and governing of the militia. As militiathey may be subjected to fines of any amount, levied in a military manner; they may besubjected to corporal punishments of the most disgraceful and humiliating nature; and todeath itself, by the sentence of a court-martial.195

We are here a long way from the worries of the later, more conservative Virginia convention; tothem, the predominant danger was that Congress would neglect the militia, or use it to supplant stategovernments.196 To the Pennsylvanians, these were secondary concerns; the primary danger was tothe individual as such. It is not surprising that, while the Pennsylvania proposals mirror almost everyprovision of the later federal bill of rights,197 any recognition of the necessity of a militia, or otheranalog to the militia component of the second amendment, is pointedly omitted. The militia ismentioned only in the eleventh proposal, which would simply provide that its organization,armament and training would remain a state responsibility, and that no militiamen may be forcedto serve outside their state of residence.198

The Pennsylvania minority did not similarly neglect the right to arms. Indeed, consistent withtheir emphasis on individual rights, their seventh proposal sought recognition:

That the people have a right to bear arms for the defense of themselves and their own State,or of the United States, or for the purpose of killing game; and no law shall be passed fordisarming the people or any of them, unless for crimes committed, or real danger of publicinjury from individuals.199

(pg.47)

200See E. Dumbauld, The Bill of Rights and What It Means Today 11 (1957).

201See I. Brant, James Madison: Father of the Constitution 264 (1950). Madison's amendments were drawn almost

entirely from forty Virginia propositions. Id. at 265.202

2 B. Schwartz, supra note 142, at 674.203

Debates and Proceedings in the Convention of the Commonwealth of Massachusetts Held in the Year 1788, at 79-81(Boston 1856).

204Id. at 86-87.

205The Journal of the convention shows Adams' motion as losing on a voice vote. Id. at 87. The record of the debates

indicates he withdrew his motion. Id. at 266. The former version is not only more authoritative, but more logical; the motion cameat the very end of the convention, when Adams had nothing to lose by pushing the matter to a vote. Moreover, the report of thedebates bore a caveat: "The printers who took the minutes of the preceding Debates, are conscious that there are some inaccuracies,and many omissions made in them. It could not be otherwise, as they were inexperienced in the business, and had not a very eligiblesituation to hear in the Convention." Id. at "Note to the First Edition of the Debates" (unpaginated).

206Daniel Webster later recollected that Adams' statement that his position on the Constitution was changed by the

resolution of a large meeting of Boston's "mechanics," Adams' primary constituency. P. Lewis, The Grand Incendiary 359-60 (1973).

The Pennsylvania proposals did not prevail in that state's convention, but the publicity accordedthem ensured that they were considered by members of later conventions.200 When, two years later,James Madison sat down to draft the federal bill of rights, he considered Pennsylvania's minorityproposals along with those of other states.201

b. Samuel Adams and the Massachusetts Minority

The Massachusetts convention saw the next proposal for a bill of rights. In that state,however, Federalist leaders faced an extremely close fight. Anxious for every vote, they accepteda limited proposal for a bill of rights, which was successfully introduced by John Hancock.202 Therights recognized by Hancock's draft were primarily economic (limiting direct taxes andfederally-created monopolies) or aimed at protecting states' rights. The only individual rightsguaranteed were those to indictment by grand jury and jury trial in civil cases.203

Samuel Adams, the famed Radical leader, unsuccessfully proposed the addition of aparagraph containing a multitude of individual rights:

[T]hat the said Constitution be never construed to authorize Congress to infringe the justliberty of the press, or the rights of conscience; or to prevent the people of the United States,who are peaceable citizens, from keeping their own arms; or to raise standing armies, exceptwhen necessary for the defense of the United States, or of some one or more of them; or toprevent the people from petitioning, in a peaceable and orderly manner, the federallegislature for a redress of grievances; or to subject the people to unreasonable searches andseizures of their persons, papers or possessions.204

Adams' motion was unsuccessful,205 but it is noteworthy that this (pg.48) Radical, whoseconstituency was the urban "mechanics" and small tradesmen,206 did not consider the militia worthyof mention, while a clearly individual right to arms merited a detailed guarantee. Even his limitationon standing armies was no more than a statement of the obvious—that they should not be maintainedwhere not necessary to defense. Although Sam Adams had a model in his state constitution, written

207See supra note 173 and accompanying text.

208New Hampshire gave the Constitution its ninth ratification and thus made it binding upon the states already

signatories. See The Federal Convention and the Formation of the Union of the American States 375 (W. Solberg ed. 1958).209

1 B. Schwartz, supra note 142, at 758.210

A fragment of one speech is all that survives of the record of its debates. Id.211

Id.212

Id. at 761.213

There was also an unsuccessful committee report, and a minority report, from Maryland: neither, however, proposedeither a militia or a right to arms clause. Id. at 729-35.

214Jefferson, then an ambassador to France, had suggested that it would be best if the Constitution were ratified by the

requisite nine States, and the remainder then held out for a bill of rights. See D. Malone, Jefferson and the Rights of Man 168-169,171 (1951).

by his aristocratic cousin John, he preferred an unlimited individual right to bear arms to John'scitation of arms bearing "for the common defense."207

c. New Hampshire: the Bill of Rights Carries a Majority

The Pennsylvania minority's position and that of Sam Adams were ultimately absorbed intothe New Hampshire proposals, attached to that state's crucial ratification.208 We know that the votein New Hampshire was expected to be close—so close that the Federalists had to obtain a temporaryadjournment to muster the votes needed to avoid defeat.209 Unfortunately, we know almost nothingof that state's deliberations.210 It is apparent that New Hampshire borrowed "almost verbatim" mostof its proposals from those advanced by Hancock in Massachusetts.211 However, the New Hampshiredelegates added three proposals of their own, perhaps taken from Samuel Adams' proposedsupplement. The first would have barred standing armies, or their quartering in private homes duringpeacetime, except with consent of three-fourths of the Congress. (pg.49) New Hampshire's secondaddition prohibited federal laws affecting religion or infringing rights of conscience. The thirdprovided that: "Congress shall never disarm any Citizen except such as are or have been in ActualRebellion."212 Like the concepts advanced by Sam Adams and by the Pennsylvania minority, theNew Hampshire proposals made no mention of a well-regulated militia.

Thus, at the time of the ninth ratification, three major proposals for a bill of rights hadsurfaced.213 All sought a clearly individual right to bear arms, and none lauded the necessity of amilitia. The Radical-Republican division visible in the state bills of rights is apparent here as well;the two demands whose origins can be traced were advanced by the Radical leadership in each state.

d. Virginia, New York, North Carolina: the Merger of Republicans and Radicals

New Hampshire's ratification did not end the battle, although by giving the Constitution itsninth ratification, it bound the states which had already signed the Constitution. Among the severalstates which had not ratified were the major commercial states of Virginia and New York. Few statesboasted the intellect arrayed in Virginia, and in few was ratification as much in doubt.

The Federalists' task was complicated by Virginia's unusual, perhaps unique, politicalalignment on the federal constitutional issues. Leaders in the call for a bill of rights, and inopposition to the unamended Constitution, came from varied backgrounds. Conservative GeorgeMason and Democrat Thomas Jefferson joined forces to promote a bill of rights,214 despite their

215See generally supra notes 141-147, 152 and accompanying text.

216A modern historian classifies Henry as "firmly attached to the world of the gentry." Isaac, Preachers and Patriots:

Popular Culture and the Revolution in Virginia, reprinted in The American Revolution 128, 153 (A. Young ed. 1976). Jefferson, whoknew him, would have differed. "Whenever the courts were closed for the winter session, he would make up a party of poor huntersof his neighborhood, would go off with them in the piny woods of Fluvanna, and pass weeks in hunting deer ... wearing the sameshirt the whole time, and covering all the dirt of his dress with a hunting shirt." M. Tyler, Patrick Henry 29-30 (reprint 1980) (1898).Richard Henry Lee's background would mark him as a member of the innermost circles of planter aristocracy. Yet this can hardlyexplain his objection to the proposed constitution that "the lower and middle classes of people would have no great share [in taxationdecisions]", nor his contemplated move to New England: "The hasty, unpersevering, aristocratic genius of the south suits not mydisposition, and is inconsistent with my ideas of what must constitute social happiness." See Letters from the Federal Farmer, supranote 101, at 20; E. Morgan, The Challenge of the American Revolution 119 (1976).

217D. Robertson, Debates and Other Proceedings of the Convention of Virginia 270-271 (2d ed. Richmond 1805).

218Id. at 274.

219Id. at 275.

220Letters from the Federal Farmer to the Republican, supra note 101, at 124.

221Id. at 21.

earlier differences as to what such a bill ought to contain.215 They were joined by the firebrandPatrick Henry and the more staid Richard Henry Lee, both of whom defy simpleclassification.216

(pg.50) Mason's position is perhaps the most simply stated. To him, the priority was protection of

the militia, and the restriction of a standing army. Yet preserving the militia required a delicatebalance: a government bent upon destroying it might do so either by too lax a regime, by"neglect[ing] to provide for arming and disciplining the Militia," or by too strict a one, "subjectingthem to unnecessary severity of discipline in time of peace, confining them under martial law, anddisgusting them so much as to make them cry out, 'give us an army.'"217 Patrick Henry shared similarfears. The "militia is our ultimate safety,"218 he wrote, yet it might be undermined if either thenational government made no provision for the militia or if its provisions added too much to thecitizens' burdens. To Henry, the militia ideal involved a good deal of personal freedom to obtainarms. Excessive requirements (e.g., requirement of a special firearm for federal duty) might hinderrather than aid the goal. "The great object is that every man be armed," he argued, asking on theother hand, "but can the people afford to pay for double sets of arms?"219 To Lee, the danger wasmore one-sided. Congress might well create a select militia, "distinct bodies of military men, nothaving permanent interests and attachments in the community."220 Having done this, it wouldnaturally neglect the militia proper, so that "the yeomanry of the country [who] possess the lands,the weight of property, possess arms, and are too strong a body of men to be openly offended ... mayin twenty or thirty years be by means imperceptible to them, totally deprived of that boasted weightand (pg.51) strength."221

Yet an analysis of only the militia question does an injustice to all three advocates. Eventhose who would normally be considered conservative or Harringtonian placed new emphasis onindividual rights. This may have been a result of their alliance with the Radicals (Jefferson was nolonger a young delegate justifying a radical constitution, but a former governor charged with themost delicate diplomatic affairs) or due to the emphasis on individual rights in past conventions, orsimply because the political climate of 1788 was different from that of twelve years before. ToMason, loss of the militia system was no longer the ultimate risk, but merely an evil means to aworse end:

222D. Robertson, supra note 217, at 270.

223Id. at 274-275.

224Letters from the Federal Farmer to the Republican, supra note 101, at 124.

225Id. at 22.

226See C. Bowen, Miracle at Philadelphia 304 (1986).

2272 B. Schwartz, supra note 142, at 765.

228Madison wrote that he could hit a small target from 100 yards, but that he was far from the best marksman. James

Madison: A Biography in His Own Words 38 (M. Peterson ed. 1974).229

The Federalist No. 46, at 310-311 (J. Madison) (Modern Library ed. 1947).230

R. Ketcham, James Madison: A Biography 640 (1970).

Forty years ago, when the resolution of enslaving America was formed in GreatBritian, the British parliament was advised by an artful man, who was governor ofPennsylvania, to disarm the people—that was the best and most effectual way to enslavethem—but that they should not do it openly; but to weaken them and let them sinkgradually, by totally disusing and neglecting the militia.222

Henry shared these feelings. On the one hand, "the militia, sir, is our ultimate safety," on theother, "[t]he great object is that every man be armed ... every one who is able may have a gun."223

Richard Henry Lee concluded his republican paean to the militia with a passage no JeffersonianDemocrat could have bettered. "[T]o preserve liberty, it is essential that the whole body of the peoplealways possess arms, and be taught alike, especially when young, how to use them."224 Perhaps toLee "the young and ardent part of the community, possessed of but little or no property" could notbe relied upon as the militia,225 but they certainly should have been armed.

Virginia's ratification was secured, albeit by a close vote of 88-80, and only at the price ofsimultaneous proposals for a bill of rights.226 The proposals were drafted by a committee thatincluded (pg.52) Antifederalists Lee and Mason, as well as Federalists James Madison, John Marshall,and John Wythe.227 Madison had always tended to emphasize individual rights in general andindividual armament in particular. At the outset of the Revolution, he had noted his skill with therifle;228 in Federalist No. 46 he would praise the "advantage of being armed, which the Americanspossess over the people of almost every other nation" and note that European governments "areafraid to trust their people with arms;"229 nearly half a century later, the former President, legislatorand "Father of the Constitution" would attack aristocracy on the ground it could never be safe"without a standing army, an enslaved press and a disarmed populace."230

The committee took an unusual approach to the militia arms concept. Previous proposals hademphasized either the importance of the militia or recognized an individual right to arms. TheVirginia committee chose to do both, and spliced together wide ranging provisions from earlierproposals. From Virginia's Bill of Rights came the militia component; while Mason's presence onthe committee made this expected, it is noteworthy because this was the first time a federal ratifyingconvention had so stressed the need for a militia. The right to arms may have been drawn almostverbatim from the Massachusetts Declaration of Rights, employing its broad reference to rights tokeep as well as to bear arms, while deleting its qualifier "for the common defense," or it may havebeen assembled from the Pennsylvania minority's recognition of a people's right to bear arms, joined

231See supra note 204 and accompanying text.

2321 B. Schwartz, supra note 142, at 842.

233See id. at 912, 968. Yet of the two, only New York ratified. North Carolina is best described as declining to ratify,

since that state's convention simply refused, pending a bill of rights, either to ratify or to repudiate the proposed Constitution. Id. at966.

234Madison had argued against a bill of rights in his contributions to the Federalist Papers. See The Federalist, supra note

229, at 238. At the Virginia convention, he argued that "A bill of rights would be a poor protection for liberty." 1 B. Schwartz, supranote 142, at 764. Even after introducing his bill of rights, he informed Jefferson "My own opinion has always been in favor of a billof rights.... At the same time I have never thought the omission of a material defect, nor been anxious to supply it even by subsequentamendment, for any other reason than that it is anxiously desired by others." 11 Papers of James Madison 297 (R. Rutland & C.Hobson eds. 1977). Yet this and later tendencies to downplay the bill of rights as an improvement on the Constitution may have beenan attempt to avoid accusations of inconsistency. No one could complain if Madison, who had expressed his personal beliefs thata bill of rights was unnecessary, was later to advocate one simply because his constituents demanded it.

23512 Papers of James Madison, supra note 234, at 58.

236Id. at 272.

237See 1 Annals of Congress 450-53 (J. Gales ed. 1789).

238See 1 B. Schwartz, supra note 142, at 1167.

to Sam Adams' proposal of a federal right of "keeping their own arms."231 Whatever the origin, it isapparent that Virginia meant to extend broad protections both to militia needs and individual rightswhen it called for recognition "that the people have the right to keep and bear arms; that a wellregulated militia, composed of the body of the people trained to arms, is the proper, natural and safedefence of a free state ...."232

(pg.53) The Virginia approach of combining a militia recognition with a statement of individual

rights could have been expected to have a broader appeal than either provision taken alone. It is thushardly surprising that it supplanted the previous models, and was employed almost verbatim in theratifying conventions in New York and North Carolina.233

V. Drafting of the Federal Bill of Rights

When James Madison found himself cast in the unlikely role of father of the national bill ofrights,234 he was not forced to write upon a clean slate. His first step was to obtain a pamphlet whichconveniently listed all state proposals, from the Pennsylvania minority onward.235 The problembecame one of editing; out of hundreds of proposals, many redundant and some questionable, a hardcore of usable proposals had to be selected. The barriers to be surmounted required discarding allcontroversial proposals. As he informed Jefferson, "every thing of a controvertible nature that mightendanger the concurrence of two-thirds of each House and three quarters of the States was studiouslyavoided."236 After excluding the controversial propositions, Madison still had to single out the mostdesirable proposal, and then (where several different proposals had been made to a single end) selectthe specific terms of the guarantee. Finally, he had to decide how to assemble and group the rightsinto a number of amendments. The last task was to a certain extent governed by Madison's plan(which had been retained in committee) to (pg.54) interweave the amendments into the text of theconstitution, in the manner of a modern "pocket part."237

Madison's decision to include a right to arms in his federal bill of rights is hardly surprising.Such a right had been demanded in virtually every call for a bill of rights; indeed, it had receivedtwice the number of demands accorded freedom of speech.238 Language praising the militia hadreceived much less support, essentially having been appended to the right to arms clause in Virginia

239See supra notes 231-32.

24012 Papers of James Madison, supra note 234, at 193 (outline prepared by Madison of a speech on the Bill of Rights).

241Madison was also walking a fine line between the Federalist and Antifederalist camps. He strove to propose

amendments which would appease the Antifederalists, thus heading off some of their likely proposals which might impair Federalistaims. The tactic was suggested to him by Henry Lee, Richard Henry Lee's brother.

242"When Madison became President he did everything in his power to carry a sound militia policy through Congress.

In every message he urged establishment of a well regulated militia; as it had been accurately defined by Washington, Hamilton andJefferson." J. Palmer, supra note 103, at 129.

24311 Papers of James Madison, supra note 234, at 297.

244Indeed, deciding upon the structure of the federal militia had been one of the most divisive questions of the young

republic. It would have been hard for Madison to have made the militia statement specific and enforceable and at the same time avoidcontroversy. See generally supra notes 93-101.

24512 Papers of James Madison, supra note 234, at 193-94. The outline was used for Madison's June 8 speech in the

House; in outlining the reasons why the English Declaration of Rights cannot be relied upon as an adequate statement of individualrights, it notes "arms to Protts," an apparent reference to the Declaration's statement that "the subjects which are protestant" may havearms.

246The difficulties in wording the militia statement as a command also highlight its unique status: it is the only portion

of the bill of rights which essentially calls for government action, rather than prohibiting it.

and the two following conventions.239 But an adaptation of the Virginia/New York/North Carolinawording combining the two held unusual promise. One of Madison's major objectives was to "bringin" North Carolina.240 He hoped to convince it to ratify the Constitution by offering an acceptablebill of rights. North Carolina could hardly object to a nearly verbatim acceptance of its demand.

A combination of a militia statement with individual right recognition fitted Madison'sobjectives perfectly. The militia statement, standing alone, would likely be unacceptable to groupstypified by the Pennsylvania minority, Sam Adams and his supporters, the New Hampshire majority,and possibly Jefferson himself, all of whom had advocated an individual right to arms clause andnone of whose efforts had so much as mentioned the militia. An individual right to arms clausestanding alone might well have irritated militia supporters such as George Mason and possiblyRichard Henry Lee, both powerful Virginians with whom Madison still had to deal and who wouldvote on his proposal, Mason in the Virginia legislature and Lee in the federal Senate.241

It is doubtful that a militia statement had too much appeal for Madison himself, although hecertainly backed the militia concept and its necessity to the republic.242 Madison was somewhatskeptical (pg.55) of bills of rights in general—"parchment barriers," he called them, violated at will bymajorities "in every state."243 How much more skeptical must he have been of an unenforceabledeclaration that a militia when "well" regulated is "necessary" to a free state? Interestingly, whileemploying imperative phrasing (i.e., "Congress shall make no law") in the remainder of the Bill ofRights, Madison did not try his handiwork on the militia statement. Instead, he let stand GeorgeMason's original, declaratory form.244

Further, when Madison outlined the improvements at which the Bill of Rights were aimed,he cited freedom of press and conscience, the right to arms, and other liberties; he gave not a wordto the militia.245 Whatever its value in Madison's eyes, Mason's proclamation that the militia "is theproper, natural and safe defense of a free state" would stay in, albeit with modification andabbreviation.246

Madison's choice for the right to keep and bear arms component was less complex. Madisonknew from experience that the Virginia/New York/North Carolina model had proven acceptable toall factions in Virginia; indeed, the committee that drafted it had included himself and Richard Henry

247This in fact happened. For example, a Massachusetts newspaper described Madison's draft as incorporating Adams'

proposals, including that for a right to arms. The Massachusetts articles were reprinted in the Philadelphia Independent Gazeteer,Aug. 20, 1789, at 2, col. 2. See generally Hardy, Origins and Development of the Second Amendment, supra note 3, at 250;Halbrook, Right to Bear Arms, supra note 3, at 309-10. A Pennsylvania newspaper explained that in Madison's draft "the people areconfirmed by the next article in the right to keep and bear their private arms." The Federal Gazette & Philadelphia Evening Post, June18, 1789, at 2, col. 1. The article was written by Tenche Coxe, a friend of Madison. Coxe mailed a copy to Madison on the day ofpublication; Madison took time from the debates to reply with appreciation and note that it had already appeared "in the Gazetteshere." Hardy, Armed Citizens, supra note 3, at 610.

248See supra note 164.

249See supra note 173.

250The absence was not inadvertent; the Senate rejected, by voice vote, a proposal to add "for the common defense" to

the right to arms clause. Journal of the First Session of the Senate of the United States of America 77 (Washington 1820) ("On motionto amend article the fifth, by inserting these words, 'for the common defense,' next to the words 'bear arms': It passed in thenegative.").

251Madison's original proposals would have included the following: "The trial of all crimes (except in cases of

impeachments, and cases arising in the land or naval forces, or the militia when on actual service, in time of war or public danger)shall be by an impartial jury of freeholders of the vicinage, with the requisite unanimity ... and in all crimes punishable with loss oflife or member, presentment or indictment by a grand jury shall be an essential preliminary...." 1 Journal of Congress 452 (J. Galesed. 1789). This proposal was ultimately divided into the fifth and sixth amendments, the first of which applies his armed forces andactive militia exception to the requirement of indictment by grand jury.

252Journal of the First Session of the Senate of the United States of America 71 (Washington 1820).

Lee, one of the Constitution's most prominent opponents. It also had been endorsed by New Yorkand always-vital North Carolina. Moreover, the concise wording of the statement "the people havea right to keep and bear arms," required little editing. A Madisonian touch adding a command thatit "shall not be infringed," was all that was needed.

The breadth of this language would likely please the Pennsylvania, Massachusetts, and NewHampshire delegates who had sought (pg.56) an individual right to arms. With any fortune at all, thesedelegates would view Madison's language as incorporating their ideas.247 The wording of the militiaclause was, after all, a combination of the broadest terms employed in the state bills of rights. FromPennsylvania had come the recognition of a popular right to bear arms;248 from Massachusetts hadcome the right to keep them; yet the controversial Massachusetts limitation to keeping and bearing"for the common defense"249 was conspicuously omitted.250 Merging the militia declaration with anindividual arms clause would thus have been expected to please George Mason and Samuel Adamsalike, nicely reconciling Harringtonians and Jeffersonians, Conservatives and Radicals.

The related issues were dealt with more quickly. Subjection of the militia to martial law wasrestricted in what became the fifth amendment by guaranteeing jury trial to militiamen not in actualservice during time of war or public danger.251 Conscientious objection would be taken care of in anaddendum to the militia statement, although that addendum was removed by the Senate.252 Thus(pg.57) four arms and military related concerns raised by the ratifying conventions could be resolvedentirely.

Significantly, the one military concern not addressed by Madison was the call for limitationson a standing army. As discussed above, Americans by 1789 had crossed the line the English Whigshad passed a century before: a standing army might be a nuisance, but now it was an Americannuisance. Statesmen would still condemn it, but also continue to authorize it. Moreover, unlike theright to arms and need for a militia, the details of limiting the army were eminently "controvertible."

253See, e.g., 1 B. Schwartz, supra note 142, at 455-56; J. McMaster & F. Stone, supra note 101, at 409 (James Wilson,

in the Pennsylvania convention: "It may be frequently necessary to keep up standing armies in time of peace. The present Congresshave ... [gone] farther and raise[d] an army without communicating to the public the purpose .... When the commotions existed inMassachusetts, they gave orders for enlisting an additional body of two thousand men .... [O]ught Congress to be deprived of powerto prepare for the defense and safety of our country?").

254Virginia's Bill of Rights, for instance, merely provided that standing armies in time of peace "should be avoided."

Maryland's provided that standing armies (presumably in war as in peace) ought not to be kept up "without the consent of thelegislature." Massachusetts provided that standing armies in time of peace ought not to be kept up without the consent of thelegislature. See 3 F. Thorpe, supra note 143, at 3814, 1688, 1892. The Pennsylvania minority desired to ban all standing armies inpeacetime, while Sam Adams desired to bar them only when not "necessary." See J. McMaster & F. Stone, supra note 101, at 462.

255A proposal to add to what became the second amendment a recognition that such armies are "dangerous to liberty,"

should be avoided as far as possible, and would be authorized in peace only upon a two-thirds vote of each house of Congress waslost six to nine. Four days later, an amendment stating more concisely that a two-thirds majority was necessary was lost on a voicevote. Journal of First Session of the Senate of the United States 71, 75 (Washington 1820).

2561 Journal of Congress 451-53 (J. Gales ed. 1789). The remaining amendments were dealt with as follows: a provision

forbidding state interference with rights of conscience or press, or to jury trial, would be inserted in article I, § 10, following theexisting restrictions on state powers; a right to civil jury trial and limitation on federal appeal would be inserted in article III, § 2,following the existing definition of federal judicial power; a detailed guarantee of criminal jury trial and grand jury indictment wouldbe substituted for the existing jury guarantees in that same section; and a new article VII would be added, expressly codifying theseparation of powers.

257Id. at 451.

258U.S. Const. amend. I.

Federalists in the conventions had strongly opposed any limitations253 and no consensus haddeveloped among the supporters of such limitations.254 Madison wisely avoided inserting suchlimitations in his draft; when others proposed them in the Senate their motions were uniformlydefeated.255 The one objective the future second amendment would not seek was a barrier to astanding army.

Having structured his proposals, Madison faced one last choice. While the Constitutionprovided for the amendment process, it said nothing regarding the form of amendments. Madisonplanned to offer nine amendments, each containing several paragraphs. Each amendment would bedesignated for insertion at a different, specific point in the text of the Constitution. The firstamendment would add a prefix to the Constitution, recognizing that all power is derived from thepeople. The second and third (which were ultimately (pg.58) rejected by the states) would expandmembership of the House and fix their compensation, and would be added to Article I in sections2 and 6. The third amendment would have grouped together ten paragraphs and inserted them inArticle I, section 9, immediately following the Constitution's existing guarantees of individual rights(viz., restrictions on suspension of habeas corpus, bills of attainder and ex post facto laws).256

Interestingly, Madison intended the future second amendment, also containing individual rights, asa general limitation of legislative power, rather than as a modification to Congress' militia powersunder Article I, section 8. While insertion of militia language might have pleased George Mason,there is little doubt that the individual right component predominated in Madison's mind.

Madison's handiwork underwent substantial editings in both House and Senate. The effectwas to pare the guarantees to a minimum. Madison's expansive guarantee of freedom of expression,"the people shall not be deprived or abridged of their right to speak, to write, or to publish theirsentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall beinviolable,"257 became simply "Congress shall make no law ... abridging the freedom of speech, orof the press."258 Madison's militia and arms provisions fared better. His proposal that "the right ofthe people to keep and bear arms shall not be infringed; a well armed and well regulated militia

259Journal of Congress, supra note 256, at 451.

260Journal of the First Session of the Senate of the United States 63, 64 (Washington 1820) (citing bill as passed by the

House).261

Lost, for example, were Madison's proposed preamble to the Constitution, stating that "Government is instituted andought to be exercised for the good of the people; which consists in the enjoyment of life and liberty ..."; his explanation that freedomof the press is "one of the great bulwarks of liberty"; and the explanation that the express guarantees ought not be read to rule outother rights retained by the people, since they were inserted "either as actual limitations of such powers, or as inserted merely forgreater caution." 1 Annals of Congress 451 (J. Gales ed. 1789). The House was apparently more interested in stating concisely thelimitations upon federal power than in explaining why the limitations were created.

262Journal of the First Session of the Senate of the United States 77 (Washington 1820) ("On motion to amend article

the fifth, by inserting these words: 'for the common defense' next to the words 'to bear arms'; it passed in the negative.").263

Id. at 77. In the House, Elbridge Gerry had unsuccessfully argued that the "best security" language was inadequatesince it admitted that other measures, e.g., a standing army, would be acceptable as secondary securities. 1 Annals of Congress 751(J. Gales ed. 1789).

being the best security of a free country..."259 became "[a] well regulated militia, composed of thebody of the people, being the best security of a free state, the right of the people to keep and beararms, shall not be infringed," as ultimately passed by the House.260 Although the first casualties ofthe House's editorial (pg.59) process were Madison's preambles and explanations,261 the militiastatement and the right to arms guarantee were both retained. The first House apparently did not feelthat either portion of the ultimate second amendment was redundant. The Senate did not either, forit emphasized the differing natures of each provision. On the one hand, it refused to add "for thecommon defense" to the right to arms guarantee,262 which would have suggested that the guarantee'spurpose was linked solely to the militia; on the other, it replaced the House's statement that themilitia was "the best security" of a free state with a stronger statement that it was "necessary" to thatsecurity.263

VI. Conclusion

The second amendment to the Constitution had two objectives. The first purpose was torecognize in general terms the importance of a militia to a free state. This recognition derives fromthe very core of Classical Republican thought; its "constituency" among the Framers was foundprimarily among conservatives, particularly Virginia's landed gentry. Indeed, prior to Virginia'sproposal, no federal ratifying convention had called for such recognition. The second purpose wasto guarantee an individual right to own and carry arms. This right stemmed both from the EnglishDeclaration of Rights and from Enlightenment sources. Its primary supporters came from theRadical-Democratic movement, whether based among the small farmers of western Pennsylvaniaor the urban mechanics of Massachusetts. Only by incorporating both provisions (pg.60) could the firstCongress reconcile the priorities of Sam Adams with those of George Mason, and lessen the"disquietude" both of the Pennsylvania and Massachusetts minorities and those of the Virginia andNew York majorities. The dual purpose of the second amendment was recognized by all early

264For example, St. George Tucker, a Revolutionary War veteran who went on to an extraordinary legal and scholarly

career, began his discussion of the second amendment with the note that "The right of self defense is the first law of nature," wenton to discuss the dangers of standing armies, and closed with a note that the British government had disarmed its citizens under theHunting Acts. See Blackstone's Commentaries, with Notes of Reference to the Constitution and Laws 300 (St. George Tucker ed.1803). William Rawle, a noted legal scholar who sat in a State convention which ratified the Bill of Rights, drew a still clearerdistinction between the two clauses:

In the Second Article, it is declared that a well regulated militia is necessary to the security of a free state: aproposition from which few will dissent. Although in actual war, the services of regular troops are confessedlymore valuable, yet ... the militia form the palladium of the country .... The corollary from the first position is,that the right of the people to keep and bear arms shall not be infringed. The prohibition is general. No clausein the Constitution could by any rule of construction be conceived to give Congress a right to disarm the people.

W. Rawle, A View of the Constitution 125 (2d ed. 1829). Similar understandings were later voiced by Story and Cooley. See 3 J.Story, Commentaries on the Constitution of the United States 746-47 (1833); T. Cooley, General Principles of Constitutional Law298-99 (3d ed. 1898). See generally Hardy, Armed Citizens, supra note 3, at 611-15.

265See supra note 2.

266Acceptance of the collective rights view, moreover, edges us into morass after morass. First, who may raise the issue?

The only political "collective rights" with which the author is familiar are those of various Indian tribes, which as sovereignsnegotiated treaties with the national government. It has been held that individual members of the tribes have standing to raise thesetribal rights as a defense to a criminal action. See, e.g., United States v. Dion, 106 U.S. 2216, 2220 n.6 (1986); United States v.Winans, 198 U.S. 371, 381 (1905). Second, what does the second amendment bar? Does it repeal by implication the federal powerto call forth the militia? Might an individual or a state object to any nationalization of military reserve units? Does it restrict thefederal power to maintain an army, or require, as a prerequisite to such maintenance, a finding that militia would not better serve theneed? If it does none of these things, then why did so many Americans, and the first Congress, spend so much time advocating it?

267The militia recognition, examined carefully, thus stands out from the remainder of the Bill of Rights; it is the only

such "recognition," the only provision lacking Madison's strongly prohibitory language, the only provision calling for federal action,the only provision phrased in such ambiguous tones. The author frankly suspects that Madison inserted it primarily to appease GeorgeMason and perhaps Richard Henry Lee. Mason's belief in the efficacy of such recognition has been discussed above, as has histendency to phrase provisions in terms of what "ought" to be done by a free government, rather than what "shall" not be done.Madison was quite familiar with Mason's outlook, having sat with him on the committee which drafted Virginia's proposals for thefederal Bill of Rights. Mason was then a man with considerable power among the dominant gentry in Virginia; Madison was morethan a bit suspect among that group for his federalist beliefs—in fact, he had been denied a seat in the first Senate by vote of thelegislature. Patrick Henry, with characteristic excess, informed the legislature that placing Madison in the Senate would "terminatein producing rivulets of blood through out the land." R. Ketchum, James Madison: An Autobiography 275 (1970). Fortunately, hiselection to the House produced not even a minor insurrection. To entirely omit a clause so close to Mason's heart as this one wouldhardly have been very wise. Conversely, if the objective was to please Mason, and the issue not one important to Madison himself,there would be no reason to spend time working out details or firming up language with commands. Mason could hardly complainabout a slight paraphrase of his own work, and its very vagueness would avoid conflict which might pull down the guarantees of

constitutional commentators;264 the assumption that the second amendment had but a single objectiveis in fact an innovation born of historical ignorance.

The distinction between the second amendment's purposes enables us to avoid the pitfalls ofthe collective rights view, which would hold that the entire amendment was meant solely to protecta "collective right" to have a militia.265 The militia component of the second amendment was notmeant as a "right", collective or individual, except in the sense that structural provisions (e.g.,requirements that money bills originate in the House, or military appropriations not exceed twoyears) are considered collective "rights." Indeed, the militia component was meant to invoke theexertion of governmental power over the citizen, to inspire it to require citizens to assume theburdens of militia duty. In this respect it differs radically from any other provision of the Bill ofRights. To read what was a recognition of an individual right, the right to arms, as subsumed withinthe militia recognition is thus not only permitting the tail to wag the dog, but to annihilate what wasintended as a right.266 As the one (pg.61) provision of the Bill of Rights which encourages rather thanrestricts governmental action, the militia component's terms were necessarily vague and its phrasinga reminder rather than a command.267

individual rights for which Madison was so deeply concerned.268

See supra note 247.269

During a seminar sponsored by the American Academy of Political and Social Sciences in 1986, Professor LawrenceCress maintained that the second amendment was purely militia-related and was "the last act of the Renaissance." The author repliedthat this was true only of its militia component, sponsored by the conservative framers, and not at all of its right to arms component,which was endorsed by radicals. The second amendment was not the last act of the Renaissance, but a bridge between the Renaissanceconcept of a republic and the Jeffersonian/Jacksonian concept of democracy. Out of that exchange grew the present article.

270We may be forgiven the suspicion that many advocates of the "collective rights" approach in fact desire the militia

statement to subsume the right to arms recognition only because they recognize the militia statement is unenforceable and, ultimately,all but meaningless. It is doubtful that most collective right proponents would react favorably to case law finding an enforceable dutyto require all citizens to purchase and stockpile M-14's, M-16's or any other standard military firearm, to force each to participatein basic training, and to organize every adult into a reserve military unit. The supposed endorsement of the militia component thusbecomes simply an expedient way of negating every provision of the second amendment, and nullifying both the objectives of theconservatives and those of the radicals.

The right to arms portion of the second amendment, in contrast, was meant to be aprohibition, as fully binding as those in the remainder of the Bill of Rights. Madison intended thatthe second amendment be read as incorporating the individual rights proposals put forward by thePennsylvania minority and by Sam Adams and the New Hampshire convention. Judging fromcontemporary discussion in Massachusetts and Pennsylvania, he succeeded.268 If either clause canbe accorded primacy, it is the right to arms clause; only in Virginia, at the eleventh hour of theratification process, was a militia clause appended to a federal bill of rights proposal.

Reading the entirety of the second amendment as militia-related, based upon somecontemporary references to the need for constitutional (pg.62) recognition of the militia concept,confuses the purpose of one provision with the text of another. The second amendment, in short,cannot be explained simply as a last avowal of the classical ideal, as "the last act of theRenaissance."269 Rather, it is a bridge between the decline of that ideal and the rise of the liberaldemocracy. Part of the second amendment looks backward to the worlds of Polybius andMachiavelli; but part looks forward, to the worlds of Jefferson and Jackson. Only a recognition ofthe dual nature of the second amendment will enable us to give meaning to the aspirations ofThomas Jefferson and Samuel Adams as well as those of George Mason.270